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Full text of "Idaho Code, Title 38-39"

CONTENTS 

Title Page 

38. Forestry, Forest Products and Stumpage Districts 1 

39. Health and Safety Ill 

(Chapters 1-44) 
Index 657 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/govlawidcode201 1 3839 



IDAHO CODE 



CONTAINING THE 



GENERAL LAWS OF IDAHO 

ANNOTATED 



ORIGINALLY PUBLISHED BY AUTHORITY OF 
LAWS 1947, CHAPTER 224 

REPUBLISHED BY AUTHORITY OF 
LAWS 1949, CHAPTER 167 AS AMENDED 



Compiled Under the Supervision of the 
Idaho Code Commission 



RICHARD F. GOODSON 

R. DANIEL BOWEN JEREMY P. PISCA 

COMMISSIONERS 

MAX M. SHEILS, JR. 
EXECUTIVE SECRETARY 



TITLES 38, 39 (1-44) 



MICHIE 



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©2011 State of Idaho 
All rights reserved. 



4226713 



ISBN 978-1-4224-8377-0 



(Pub.42205) 



PUBLISHER'S NOTE 

Since the publication in 2002 of the last edition of this volume, many laws 
have been amended or repealed and many new laws have been enacted. The 
resulting increase in the size of the cumulative supplement for the former 
volume has made it necessary to revise this volume. Accordingly, this new 
volume with Replacement Titles 38 and 39 (Chapters 1-44) is issued with 
the approval and under the direction of the Idaho Code Commission. 

This publication contains annotations taken from decisions of the Idaho 
Supreme Court and the Court of Appeals and the appropriate federal courts. 
These cases will be printed in the following reports: 

Idaho Reports 

Pacific Reporter 

Federal Supplement 

Federal Reporter 

United States Supreme Court Reports, Lawyers' Edition 

Following is an explanation of the abbreviations of the Court Rules used 
throughout the Idaho Code. 

I.R.C.P. Idaho Rules of Civil Procedure 

I.R.E. Idaho Rules of Evidence 

I.C.R. Idaho Criminal Rules 

M.C.R. Misdemeanor Criminal Rules 

I.I.R. Idaho Infraction Rules 

I.J.R. Idaho Juvenile Rules 

I.C.A.R. Idaho Court Administrative Rules 

I.A.R. Idaho Appellate Rules 

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in 



USER'S GUIDE 



To assist the legal profession and the layperson in obtaining the maxi- 
mum benefit from the Idaho Code, a User's Guide has been included in the 
first volume of this set. 



ADJOURNMENT DATES OF SESSIONS OF 
LEGISLATURE 

Article 3, § 22 of the Idaho State Constitution provides: "No act shall take 
effect until sixty days from the end of the session at which the same shall 
have been passed, except in case of emergency, which emergency shall be 
declared in the preamble or in the body of the law." 

Section 67-510 Idaho Code provides: "No act shall take effect until July 1 
of the year of the regular session or sixty (60) days from the end of the 
session at which the same shall have been passed, whichever date occurs 
last, except in case of emergency, which emergency shall be declared in the 
preamble or body of the law. 

Every joint resolution, unless a different time is prescribed therein, takes 
effect from its passage." 

This table is given in order that the effective date of acts, not carrying an 
emergency or which do not specify an effective date, may be determined with 
a minimum of delay. 

Year Adjournment Date 



1921 March 5 

1923 March 9 

1925 March 5 

1927 March 3 

1929 March 7 

1931 March 5 

1931 (E.S.) March 13 

1933 March 1 

1933 (E.S.) June 22 

1935 March 8 

1935 (1st E.S.) March 20 

1935 (2nd E.S.) July 10 

1935 (3rd E.S.) July 31 

1937 March 6 

1937 (E.S.) November 30 

1939 March 2 

1941 March 8 

1943 February 28 

1944 (1st E.S.) March 1 

1944 (2nd E.S.) March 4 

1945 March 9 

1946 (1st E.S.) March 7 

1947 March 7 

1949 March 4 

1950 (E.S.) February 25 

1951 March 12 

1952 (E.S.) January 16 

1953 March 6 



vn 



1921 
1923 
1925 
1927 
1929 
1931 
1931 
1933 
1933 
1935 
1935 
1935 
1936 
1937 
1938 
1939 
1941 
1943 
1944 
1944 
1945 
1946 
1947 
1949 
1950 
1951 
1952 
1953 



Vlll ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE 

1955 March 5 

1957 March 16 

1959 March 9 

1961 March 2 

1961 (1st E.S.) August 4 

1963 March 19 

1964 (E.S.) August 1 

1965 March 18 

1965 (1st E.S.) March 25 

1966 (2nd E.S.) March 5 

1966 (3rd E.S.) March 17 

1967 March 31 

1967 (1st E.S.) June 23 

1968 (2nd E.S.) February 9 

1969 March 27 

1970 March 7 

1971 March 19 

1971 (E.S.) April 8 

1972 March 25 

1973 March 13 

1974 March 30 

1975 March 22 

1976 March 19 

1977 March 21 

1978 March 18 

1979. March 26 

1980 March 31 

1981 March 27 

1981 (E.S.) July 21 

1982 March 24 

1983 April 14 

1983 (E.S.) May 11 

1984 March 31 

1985 March 13 

1986 March 28 

1987 April 1 

1988 March 31 

1989 March 29 

1990 March 30 

1991 March 30 

1992 , April 3 

1992 (E.S.) July 28 

1993 March 27 

1994 April 1 

1995 March 17 

1996 March 15 

1997 March 19 

1998 March 23 

1999 March 19 



1955 
1957 
1959 
1961 
1961 
1963 
1964 
1965 
1965 
1966 
1966 
1967 
1967 
1968 
1969 
1970 
1971 
1971 
1972 
1973 
1974 
1975 
1976 
1977 
1978 
1979 
1980 
1981 
1981 
1982 
1983 
1983 
1984 
1985 
1986 
1987 
1988 
1989 
1990 
1991 
1992 
1992 
1993 
1994 
1995 
1996 
1997 
1998 
1999 



ADJOURNMENT DATES OF SESSIONS OF LEGISLATURE ix 

2000 April 5, 2000 

2001 March 30, 2001 

2002 March 15,2002 

2003 May 3, 2003 

2004 March 20, 2004 

2005 April 6, 2005 

2006 April 11, 2006 

2006 (E.S) August 25, 2006 

2007 March 30, 2007 

2008 April 2, 2008 

2009 May 8, 2009 

2010 March 29, 2010 

2011 April 7, 2011 



TABLE OF CONTENTS 



TITLE 38 

FORESTRY, FOREST PRODUCTS AND STUMPAGE DISTRICTS 

Chapter Sections 

1. Idaho Forestry Act §§ 38-101 — 38-138 

2. Reforestation Law [Repealed] 

3. Cooperative Sustained Yield Districts [Repealed] 

4. Fire Hazard Reduction Programs §§ 38-401 — 38-411 

5. Seeding of Burned Areas §§ 38-501 — 38-511 

6. Forest Insects, Pests and Disease §§ 38-601 — 38-608 

7. Forest, Wildlife and Range Experiment Station §§ 38-701 — 38-714 

8. Floating Timber §§ 38-801 — 38-809 

9. Inspection of Lumber [Repealed] 

10. Stumpage Districts §§ 38-1001 — 38-1027 

11. Sale of Lumber Produced Outside of the State §§ 38-1101, 38-1102 

12. Log Scaling §§ 38-1201 — 38-1222 

13. Forest Practices Act §§ 38-1301 — 38-1314 

14. Right to Conduct Forest Practices §§ 38-1401 — 38-1404 

15. Idaho Forest Products Commission §§ 38-1501 — 38-1518 

16. Interstate Forest Fire Suppression Compact § 38-1601 



TITLE 39 

HEALTH AND SAFETY 

Chapter Sections 

1. Environmental Quality — Health §§ 39-101 — 39-175C 

2. Vital Statistics §§ 39-201 — 39-278 

3. Alcoholism and Intoxication Treatment Act §§ 39-300 — 39-316 

4. Public Health Districts §§ 39-401 — 39-427 

5. Aquifer Protection Districts §§ 39-501 — 39-508 

6. Control of Venereal Diseases §§ 39-601 — 39-610 

7. Advertising Cures for Sexual Disorders [Repealed] 

8. Contraceptives and Prophylactics §§ 39-801 — 39-810 

9. Prevention of Blindness and Other Preventable Diseases 

in Infants §§ 39-901 — 39-912 

10. Prevention of Congenital Syphilis §§ 39-1001 — 39-1006 

11. Basic Day Care License §§ 39-1101 — 39-1120 

12. Child Care Licensing Reform Act §§ 39-1201 — 39-1224 

13. Hospital Licenses and Inspection §§ 39-1301 — 39-1395 

14. Health Facilities §§ 39-1401 — 39-1460 

15. Care of Biological Products §§ 39-1501 — 39-1503 

16. Food Establishment Act §§ 39-1601 — 39-1613 

17. Health Regulations for Eating Places and Food Establishments — 

Grading and Licensing [Reserved or Repealed] 

18. Hotels and Food Vending Establishments — Regulations and 

Inspection §§ 39-1801 — 39-1834 

19. Fire Escapes and Doors §§ 39-1901 — 39-1905 

20. Barber Shops, Hairdressing Establishments and Public Bathing 

Places [Repealed] 

21. Marking of Explosives §§ 39-2101 — 39-2103 

22. Liquefied Petroleum Gases [Repealed] 

23. Smoke Management [Repealed] 

24. Home Health Agencies §§ 39-2401 — 39-2411 

25. Speed, Equipment and Traffic Regulations for Boats and 

Watercraft [Repealed] 

26. Fireworks §§ 39-2601 — 39-2630 

xi 



xil TABLE OF CONTENTS 

Chapter Sections 

27. Plumbing and Plumbers [Amended and Redesignated or Repealed] 

28. Abatement Districts §§ 39-2801 — 39-2814 

29. Energy Efficient State Buildings [Effective until 

July 1,2013] §§ 39-2901 — 39-2904 

30. Radiation and Nuclear Material §§ 39-3001 — 39-3030 

31. Regional Mental Health Services §§ 39-3101 — 39-3139 

32. Idaho Community Health Center Grant Program §§ 39-3201 — 39-3209 

33. Idaho Residential Care or Assisted Living Act §§ 39-3301 — 39-3393 

34. Revised Uniform Anatomical Gift Act §§ 39-3401 — 39-3425 

35. Idaho Certified Family Homes §§ 39-3501 — 39-3580 

36. WaterQuality §§ 39-3601 — 39-3639 

37. Anatomical Tissue, Organ, Fluid Donations §§ 39-3701 — 39-3703 

38. Minors — Consent to Treatment § 39-3801 

39. Sterilization §§ 39-3901 — 39-3915 

40. Manufactured Homes — Standards §§ 39-4001 — 39-4011 

41. Idaho Building Code Act §§ 39-4101 — 39-4131 

42. Recreational Vehicles and Park Trailers §§ 39-4201 — 39-4203 

43. Modular Buildings §§ 39-4301 — 39-4306 

44. Hazardous Waste Management §§ 39-4401 — 39-4432 



TITLE 38 

FORESTRY, FOREST PRODUCTS AND STUMPAGE 

DISTRICTS 



CHAPTER. 

1. Idaho Forestry Act, §§ 38-101 — 38-138. 

2. Reforestation Law. [Repealed.] 

3. Cooperative Sustained Yield Districts. [Re- 

pealed.] 

4. Fire Hazard Reduction Programs, §§ 38- 

401 — 38-411. 

Seeding of Burned Areas, §§ 38-501 — 
38-511. 

Forest Insects, Pests and Disease, §§ 38- 
601 — 38-608. 

Forest, Wildlife and Range Experiment Sta- 
tion, §§ 38-701 — 38-714. 

Floating Timber, §§ 38-801 — 38-809. 

Inspection of Lumber. [Repealed.] 



5. 



10. Stumpage Districts, §§ 38-1001 — 38- 

1027. 

11. Sale of Lumber Produced Outside of the 

State, §§ 38-1101, 38-1102. 

12. Log Scaling, §§ 38-1201 — 38-1222. 

13. Forest Practices Act, §§ 38-1301 — 38- 

1314. 

14. Right to Conduct Forest Practices, 

§§ 38-1401 — 38-1404. 

15. Idaho Forest Products Commission, §§ 38- 

1501 — 38-1518. 

16. Interstate Forest Fire Suppression Com- 

pact, § 38-1601. 



CHAPTER 1 
IDAHO FORESTRY ACT 



SECTION. 

38-101. Definitions. 

38-102. Duties of director of department of 
lands. 

38-103. Assistants. 

38-104. Cooperation with other agencies — 
Restrictions. 

38-104A. Nonprofit timber protective associ- 
ations — Restrictions on lia- 
bility. 

38-105. State forest and range lands — Ap- 
plication of chapters. 
Hearing of aggrieved landowner. 
Uncontrolled fires a nuisance — 

Abatement — Civil liability. 
Protection by woodworking and wood 
product plants. 

38-109. Penalty for violation — Injunction — 
Suspension of restrictions. 

38-110. Forest protective districts — Fire 
wardens. 

38-111. Protection by owner — Assessments 
— Budget of protective dis- 
tricts. 

38-112. Charges a lien — Method of collec- 
tion. 
Purchaser of forest products respon- 
sible for protection — Liens. 
State to pay pro rata for fire protec- 
tion — Deficiency warrants. 

38-115. Closed season for fires — Permits — 
Regulations — Extension of 
closed season — Suspension of 
permits — Penalty. 

38-116. Campfires — Acts prohibited — Pen- 
alty. 



38-106. 
38-107. 

38-108. 



38-113. 



38-114. 



SECTION. 

38-117. Throwing away lighted material — 
Penalty. 

38-118. Duty of railroads — Penalties. 

38-119. Notification of fires by railroad em- 
ployees — Penalty. 

38-120. Instruction to employees of railroads. 

38-121. Operation of engines without ade- 
quate protection — Penalty — 
Injunction. 

38-122. Protection by logging outfits — Fire 
suppression account — Liabil- 
ity for fire suppression costs — 
Penalty. 

38-123. Disposal of slash — Injunction 
against further cutting — Dis- 
posal at expense of owner — 
Lien and enforcement — Or- 
ders. 

38-124. Precautions in disposal of slash — 
Separate offenses — Penalty. 

38-125. Clearing rights of way — Precaution 
in clearing — Application to 
public work — Penalty — In- 
junction. 

38-126. Interference with protective agencies 
— Penalty. 

38-127. Destruction of signs and warnings — 
Penalties. 

38-128. Duties of prosecuting attorneys and 
attorney general. 

38-129. Forest protection fund — Custody, 
sources and appropriation — 
Disbursement. 

38-130. Disposition of fines. 



38-101 FORESTRY 2 

SECTION. SECTION. 

38-131. Deficiency warrants for excess costs 38-133. Officers charged with enforcement. 

of fire suppression. 38-134. Forest practices act administration 
38- 131 A. Deficiency warrants for costs of fire — Funding. 

suppression on state-owned 38-135. Forest practices administration ac- 

range lands. count. 

38-132. Regulations of the board — Penalty 38-136. Community forestry trust account. 

for violation. 38-137, 38-138. [Repealed.] 

38-101. Definitions. — As used in this chapter, the following terms are 
denned as follows: 

(a) "Forest land" means any land which has upon it sufficient brush or 
flammable forest growth of any kind or size, living or dead, standing or 
down, including debris or growth following a fire or removal of forest 
products, to constitute a fire menace to life (including animal) or property. 

(b) "Range land" means any land which is not cultivated and which has 
upon it native grasses or other forage plants making it best suited for 
grazing of domestic and wild animals and which land is adjacent to or 
intermingled with forest land. 

(c) "Person" shall mean and include any person or persons, and any 
corporation, firm or other entity. 

(d) "Everyone" or "anyone" shall mean any and all person or persons, 
corporations, firms, or other entities. 

(e) "State" shall mean the state of Idaho. 

(f) "Board" shall mean the state board of land commissioners. 

(g) "State forester" as used in this chapter and wherever else it is used in 
the Idaho Code, shall mean the director of the department of lands or his 
duly authorized delegates or employees, including fire wardens and deputy 
fire wardens. 

(h) "Fire warden" or "forest warden" shall mean duly appointed fire 
wardens or their deputies. 

(i) "Forest products" shall mean any ties, logs, poles, posts, cordwood, 
pulpwood or other timber products. 

(j) "Slashing areas" shall mean areas upon which, after cutting of the 
trees or brush preparatory to clearing, or after the cutting of any forest 
products, sufficient flammable material remains upon the ground as a result 
of such operations to constitute a menace to life or property. 

(k) "Slash" or "slashing" shall mean brush, severed limbs, poles, tops 
and/or other waste material incident to such cutting or to the clearing of 
land, which are four (4) inches and under in diameter. 

(I) "Forest fire" as used in this chapter means any fire burning uncon- 
trolled on any land covered wholly or in part by timber and/or other 
potential forest products, slash, brush, or other flammable vegetation. 

(m) "Range fire" means any fire burning uncontrolled on any range land. 

(n) Whenever the term "state cooperative board of forestry" is used in any 
other section of the Idaho Code, it shall be construed to mean the state board 
of land commissioners. 

(o) "Administrator" means the head of a division organized within the 
department of lands. 

(p) "Community forestry" or "urban forestry" means the management of 
the trees and associated vegetation in rural and urban communities. 



FORESTRY ACT 



38-102 



(q) "Improved lot or parcel" means forest land upon which a residential 
structure exists as determined by the department. In making such deter- 
mination, the department may consult with the county assessor. 



History. 

1972, ch. 401, § 2, p. 1164; am. 1974, ch. 17, 



§ 3, p. 308; am. 1992, ch. 258, § 1, p. 749; am. 
1993, ch. 93, § 1, p. 221. 



STATUTORY NOTES 



Prior Laws. 

Original sections 38-101, 38-102, which 
originally comprised S.L. 1925, ch. 150, first 
and second paragraphs of § 1, p. 265; am. 
1929, ch. 69, first and second paragraphs of 
§ 1, p. 98; I.C.A., §§ 37-101, 37-102; am. 
1943, ch. 156, § 1, p. 314 and thereafter I.C., 
§§ 38-101, 38-102 as repealed and reenacted 
by 1967, ch. 315, §§ 1, 2, p. 906, were re- 
pealed by S.L. 1972, ch. 40, § 1 and S.L. 1972, 
ch. 401, § 4. 

Former sections 38-103 to 38-134, which 
comprised S.L. 1925, ch. 150, third and fourth 
pars, of § 1, §§ 2 to 22, 24 to 32, p. 265; am. 
1929, ch. 69, third and fourth pars, of § 1, 
§§ 2 to 7, p. 98; I.C.A., §§ 37-103 to 37-125, 
37-127 to 37-135, 37-139; am. 1933, ch. 35, 
§ 1, p. 47; am. 1933, ch. 83, § 1, p. 133; am. 
1935, ch. 35, § 1, p. 60; am. 1935, ch. 68, § 1, 
p. 122; am. 1937, ch. 199, § 1, p. 337; am. 
1943, ch. 93, § 1, p. 188; am. 1943, ch. 156, 
§§ 2 to 5, p. 314; am. 1945, ch. 105, § 1, p. 
158; am. 1947, ch. 138, § 1, p. 334; am. 1949, 
ch. 273, §§ 1, 2, p. 556; am. 1953, ch. 49, § 1, 
p. 66; am. 1955, ch. 132, § 1, p. 269; am. 1957, 
ch. 162, §§ 1 to 3, p. 293; am. 1959, ch. 22, 
§ 1, p. 51; am. 1961, ch. 65, § 1, p. 93; am. 
1961, ch. 218, § 1, p. 350; am. 1963, ch. 39, 
§ 1, p. 187; am. 1963, ch. 162, § 1, p. 477; am. 
1963, ch. 356, § 1, p. 1022; am. 1965, ch. 77, 
§ 1, p. 125; am. 1967, ch. 315, §§ 3 to 10, p. 
906; am. 1968 (2nd E. S.), ch. 14, § 2, p. 29; 
am. 1968 (2nd E. S.), ch. 18, § 1, p. 33; am. 
1969, ch. 149, § 1, p. 474; am. 1969, ch. 304, 
§ 1, p. 910; I.C., § 38-125A, as added by 1970, 
ch. 147, § 1, p. 442, were repealed by S.L. 
1972, ch. 401, § 4, effective July 1, 1973. 



Cross References. 

Coniferous trees, bill of sale required for 
transportation, §§ 18-4627, 18-4628. 

Defacing marks on lumber, § 18-4616. 

Destruction of timber on state lands, §§ 18- 
7009, 18-7010. 

Director of department of lands, § 58-105. 

Director of the department of lands may 
delegate powers to state forest warden under 
act, § 38-403. 

Firing timber or prairie lands a misde- 
meanor, § 18-7004. 

Forest insects, pests and diseases, power of 
director of the department of lands to eradi- 
cate and destroy, § 38-602. 

Forest practices act, § 38-1301 et seq. 

Forest, wildlife and range experiment sta- 
tion to conduct cooperative investigation with 
director of the department of lands, § 38-703. 

Loggers' liens, § 45-401 et seq. 

Malicious destruction of lumber, § 18-7020. 

Sale of timber on state lands, § 58-401 et 
seq. 

State board of land commissioners, Idaho 
Const., Art. IX, § 7 and § 58-101 et seq. 

State forests and state parks, state board of 
land commissioners authorized to acquire or 
lease land for development of, § 58-501 et 
seq. 

Watershed protection and flood prevention 
duties, § 42-3602 et seq. 

Compiler's Notes. 

Section 1 of S.L. 1972, ch. 401, read: "This 
act is a comprehensive recodification of chap- 
ter 1, title 38, Idaho Code, the Idaho Forestry 
Act." 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 



RESEARCH REFERENCES 



C.J.S. 

et seq. 



98 C.J.S., Woods and Forests, § 1 



38-102. Duties of director of department of lands. — It shall be the 
duty of the director of the department of lands to execute the provisions of 
this chapter, and the rules and regulations of the state board of land 
commissioners pertaining to forest and watershed protection; to represent 
the state in cooperation with forest owners and others in forest protection 
work; to further the enforcement of laws for the protection and preservation 



38-103 FORESTRY 4 

of forests; to collect and disseminate information upon forest resources and 
forest conditions; to promote community forest management on public and 
private lands; to report to the state board of land commissioners concerning 
the improvement and management of the state's forest holdings; to advise 
farmers and others concerning the development and management of 
woodlots and forest tracts; and to make such investigation and take such 
steps as shall lead to the adoption and execution of a comprehensive state 
forest policy in the interest of the entire state. The director shall furnish 
such information, make such recommendations, and perform such duties as 
may be required of him by the state board of land commissioners. The 
director may delegate all or any portion of his duties or responsibilities 
provided under this chapter to one (1) or more division heads or employees 
of the department of lands. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1974, ch. 17, 
§ 4, p. 308; am. 1992, ch. 258, § 2, p. 749. 

STATUTORY NOTES 

Cross References. Prior Laws. 

Director of department of lands, § 58-105. Former § 38-102 was repealed. See Prior 

State board of land commissioners, art. IX, Laws, § 38-101. 
§ 7, Idaho Const, and § 58-101 et seq. 
Youth conservation project, § 56-601 et seq. 

RESEARCH REFERENCES 

C.J.S. — 98 C.J.S., Woods and Forests, 
§§ 14, 15. 

38-103. Assistants. — The director of the department of lands is 
authorized to employ such clerical, administrative and professional staff 
and such other help and assistants and acquire such facilities and incur 
such expenses as the state board of land commissioners may determine to be 
proper and necessary, all of which shall be paid out of the appropriations 
from the general fund or special funds provided for this purpose in the 
budget for the department of lands. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1974, ch. 17, 
§ 5, p. 308. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the department of public lands 

State board of land commissioners, art. EX, a t the end of this section has been changed to 

§ 7, Idaho Const, and § 58-101 et seq. the department of lands on the authority of 

Prior Laws. S.L. 1974, ch. 286, § 1 and S.L. 1974, ch. 17, 

Former § 38-103 was repealed. See Prior § 39 (§ 58-101). 
Laws, § 38-101. 



5 FORESTRY ACT 38-104 

38-104. Cooperation with other agencies — Restrictions. — 

(1) The director of the department of lands, in executing the provisions of 
this chapter, insofar as it relates to privately owned forest or range land, 
shall have authority to cooperate with federal, county, state, municipal and 
private agencies, all voluntary forest or range land protective associations 
now organized and which may from time to time hereafter be organized 
within the state of Idaho, and he shall have authority to: 

a. Enter into agreements with the federal government, under such terms 
as he deems advisable or as may be provided by law, and renew, revise or 
terminate such agreements for the purpose of furnishing, operating and 
maintaining a protective system for the detection, prevention and sup- 
pression of forest or range fires; provided, that the costs and expenses 
incurred, accruing and contracted for by the terms of said agreements 
shall be paid from the appropriations or funds available for the protection 
of forest land. Funds collected from owners of forest lands shall be used 
only for the benefit of forest lands within the forest protective district from 
which collected. 

b. Enter into agreements with any county or municipality on such terms 
and under such conditions as he may deem wise, and subject to the 
approval of the board, for the detection, prevention or suppression of 
forest fires on any lands within said county or municipality, or for the 
protection and forest management of any lands over which such county or 
municipality has jurisdiction, or for reforestation or afforestation of lands 
within said county or municipality, whenever any county or municipality 
shall have made any appropriations therefor. 

c. Subject to the provisions of subsection (d) hereof, enter into agree- 
ments, with the approval of the board, with any person, firm, organiza- 
tion, association, corporation, state board, officer or agency owning and/or 
controlling any forest or range land, or whose function, desire and/or duty 
it is to protect any forest or range land from forest or range fires, under 
such terms and conditions as he deems advisable or as may be required by 
law, and renew, revise or terminate such agreements, for the purpose of 
furnishing, operating and maintaining, a protective system for the detec- 
tion, prevention and suppression of forest or range fires in forest protec- 
tive districts; provided, that no agreements entered into under authority 
of this section shall provide that the same shall pay more than its pro rata 
share as provided in section 38-114, Idaho Code, and provided, further, 
that the costs and expenses incurred, accruing or contracted for by the 
terms of said agreement shall be paid from appropriations or funds 
available for the protection of forest or range lands from forest or range 
land fires, or from moneys recovered from persons held responsible under 
this chapter for the payment thereof. 

d. The director shall not contract with any timber protective association 
unless such association limits its lobbying activities only to securing the 
passage, repeal, or amendment of laws that directly concern the individ- 
ual association and its program of conservation and fire protection, nor 
shall he contract with any timber protective association whose bylaws or 
contracts do not provide for the dissolution of such associations by the 
consent or resolution of its members or members whose total acreage 



38-104A FORESTRY 6 

within such association constitutes at least sixty-seven per cent (67%) of 
the total acreage within the association's jurisdiction. Upon dissolution 
the association shall provide for the distribution of the association's assets 
to a qualified successor organization in accordance with section 501(c)(4) 
of the United States internal revenue code. An association may be 
incorporated or unincorporated. For the purposes of this chapter, the state 
shall be deemed a member of such association if it has entered into an 
agreement therewith. 

(2) As a condition of any contract of the state with any timber protective 
association, the liability of the state is limited to the amount established by 
the laws of the state governing the contract or a tort liability of the state. As 
a further condition of any contract of an association with the state, no 
association shall settle or compromise any claim or suit against it without 
prior approval of the state land board. 

(3) Prior to state participation or prior to continued state participation as 
a member of any timber protective association the director shall annually 
review and inspect the association for the following: 

a. The governing and managing structure of the association; 

b. The condition of equipment and its proposed use; 

c. The adequacy of liability insurance; and, 

d. The training of all association personnel. 

The director shall report his findings and make recommendations to the 
state land board. If the state land board determines that the association is 
unable to perform its proper duties or is unsuitable for continued state 
membership the state land board shall give the association one (1) year in 
which to make the necessary improvements and if this is not done within 
one (1) year then the land board shall cause the state to withdraw its 
membership from the association or take the necessary steps to dissolve the 
association. 

History. § 6, p. 308; am. 1977, ch. 34, § 1, p. 59; am. 

1972, ch. 401, § 2, p. 1164; am. 1974, ch. 17, 1982, ch. 318, § 1, p. 792. 

STATUTORY NOTES 

Cross References. Federal References. 

Director of department of lands, § 58-105. Section 501(c)(4) of the United States inter- 
State board of land commissioners, Idaho nal revenue code, referred to in subdivision 
Const., Art. DC, § 7 and § 58-101 et seq. (l)d, is compiled as 26 USCS § 501(c)(4). 

Prior Laws. Effective Dates. 

Former § 38-104 was repealed. See Prior Section 2 of S.L. 1982, ch. 318 declared an 
Laws, § 38-101. emergency. Approved April 1, 1982. 

38-104A. Nonprofit timber protective associations — Restric- 
tions on liability. — (1) "Nonprofit timber protective association" means a 
nonprofit corporation, or nonprofit unincorporated association, that has 
entered into a contract for the detection, prevention or suppression of forest 
and range fires with the state of Idaho or any agency of the state of Idaho 
pursuant to title 38, Idaho Code. 

(2) A nonprofit timber protective association and its employees, while 
acting within the scope of their employment, and while performing a 



7 FORESTRY ACT 38-105 

contract with the state of Idaho or any agency of the state of Idaho, without 
malice or criminal intent, shall not be liable for any claim for bodily or 
personal injury, death, property damage or other loss that arises out of an 
act or omission of an employee based upon the exercise or performance, or 
the failure to exercise or perform, a discretionary function or duty on the 
part of the nonprofit timber protective association or its employee, whether 
or not the discretion is abused. 

(3) A nonprofit timber protective association and its employees, while 
acting within the scope of their employment, and while performing a 
contract with the state of Idaho or any agency of the state of Idaho, shall not 
be liable for punitive damages on any claim for bodily or personal injury, 
death, property damage or other loss. 

(4) The combined aggregate liability of a nonprofit timber protective 
association and its employees for damages, costs and attorney's fees for 
bodily or personal injury, death, property damage, or other loss as a result 
of any one (1) accident, arising out of the performance of a contract with the 
state of Idaho or any agency of the state of Idaho, regardless of the number 
of persons injured, the number of claimants, or the number of properties 
damaged, shall not exceed the sum of five hundred thousand dollars 
($500,000), unless the nonprofit timber protective association has valid and 
collectible liability insurance coverage in excess of five hundred thousand 
dollars ($500,000), in which event the combined aggregate liability shall be 
the remaining available proceeds of such insurance. 

History. 

I.C., § 38-104A, as added by 2006, ch. 153, 
§ 1, p. 468. 

STATUTORY NOTES 

Effective Dates. 

Section 2 of S.L. 2006, ch. 153 declared an 
emergency. Approved March 22, 2006. 

38-105. State forest and range lands — Application of chapters. — 

The provisions of this chapter shall be applicable to the forest and range 
lands belonging to the state with the same force and effect as they apply to 
privately owned forest and range lands within the state; except that for the 
protection of state-owned range lands, the state board of land commission- 
ers may enter into agreements or otherwise provide for a reasonable 
arrangement assuring the timely suppression of fires on or threatening 
state-owned range lands whether or not said lands are adjacent to or 
intermingled with forest lands. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1988, ch. 
208, § 1, p. 390. 



38-106 FORESTRY 8 

STATUTORY NOTES 

Cross References. Prior Laws. 

State board of land commissioners, Idaho Former § 38-105 was repealed. See Prior 

Const., Art. IX, § 7 and § 58-101 et seq. Laws, § 38-101. 

38-106. Hearing of aggrieved landowner. — Any owner or owners or 
the accredited representative of any owner or owners of forest lands subject 
to the provisions of this chapter, shall upon request, be granted a hearing 
before the board, or an appropriate executive committee thereof, on any 
subject pertaining to the activities of the director of the department of lands 
or of said board affecting his or their property: provided, that no request for 
a hearing before the board shall have the effect of suspending the operations 
of the director of the department of lands or any fire warden undertaken 
pursuant to the provisions of this chapter, but, upon such hearing, the board 
may terminate such operations if found unreasonable. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 



Prior Laws. 



changed to director of the department of lands 
on authority of S.L. 1974, ch. 286, § 1 and 



Former § 38-106 was repealed. See Prior g L 1974j ch 17> § 3 (§ 38 _ioi( g )). 
Laws, § 38-101. 

38-107. Uncontrolled fires a nuisance — Abatement — Civil lia- 
bility. — Any forest or range fire burning out of control or without adequate 
and proper precautions having been taken to prevent its spread, is hereby 
declared a public nuisance, by reason of its menace to life and/or property. 
Any person responsible through his conduct, acts and/or control of property 
or operations for either the starting or the existence of such fire is hereby 
required to make a reasonable effort to control or extinguish it immediately, 
without awaiting instructions from the director of the department of lands 
or a fire warden. The director of the department of lands or any fire warden 
may summarily abate the nuisance thus constituted by controlling or 
extinguishing such fire and the person wilfully or negligently responsible for 
the starting or existence of such fire shall be liable for the costs incurred by 
the state or its authorized agencies in controlling or extinguishing the same. 
The amount of such costs shall be recovered by a civil action prosecuted in 
the name of the state of Idaho and any amounts recovered shall be paid to 
the state treasurer for deposit to the forest protection fund. Civil liability 
provided for herein shall be exclusive of and in addition to any criminal 
penalties otherwise provided. 

History. 

1972, ch. 401, § 2, p. 1164. 



9 FORESTRY ACT 38-109 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 

Forest protection fund, § 38-129. changed to director of the department of lands 



Prior Laws. 



on authority of S.L. 1974, ch. 286, § 1 and 



Former§38-107 was repealed. See Prior SL " 1974 > ch ' 17 ' § 3 <« *"<*<*»• 
Laws, § 38-101. 

38-108. Protection by woodworking and wood product plants. — 

Any saw mill, planing mill, shingle mill or other woodworking plant, or 
plant manufacturing wood products, operating in or near forest land, and 
burning refuse wood material outside of and/or adjacent to such mill or 
plant, shall enclose the area where such refuse is burned with a fireproof 
wall at least twelve feet (12') in height and in diameter at least two feet (2') 
greater than the longest refuse or wood material so burned by such mill or 
plant to prevent the escape or spread of fire therefrom; provided, however, 
that such mills or plants having adequately constructed and properly 
maintained burners, or those whose burners of any description are not so 
located that fire does or can escape or spread therefrom and endanger the 
lives and/or property of others, shall be exempt from the provisions of this 
section; and provided, further, that the requirements of this section shall 
constitute the minimum requirements for public safety, and that nothing 
herein contained shall be construed to prevent the operators of such mill or 
plant from being required to increase such protection to make the same 
adequate to the requirements of public safety; and provided, further, that 
the preceding proviso shall not be construed to require the use of a hooded 
burner or permanent structure. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. 

Forest land defined, § 38-101. 

Prior Laws. 

Former § 38-108 was repealed. See Prior 
Laws, § 38-101. 

38-109. Penalty for violation — Injunction — Suspension of re- 
strictions. — Refusal or neglect to comply with the provisions of section 
38-108, Idaho Code, shall be deemed a petty misdemeanor, and any person 
refusing or neglecting to comply therewith may be enjoined from further use 
of such mill or plant until proper equipment is installed; provided, that the 
director of the department of lands may suspend the restrictions of section 
38-108, Idaho Code, when and where he deems public safety so permits. 

History. 

1972, ch. 401, § 2, p. 1164. 



38-110 FORESTRY 10 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 

Penalty for misdemeanor when not other- changed to director of the department of lands 

wise provided, § 18-113. on aut hority of S.L. 1974, ch. 286, § 1 and 

Prior Laws. S.L. 1974, ch. 17, § 3 (§ 38-101(g)). 

Former § 38-109 was repealed. See Prior 
Laws, § 38-101. 

38-110. Forest protective districts — Fire wardens. — The director 
of the department of lands of the state of Idaho shall divide the state into 
districts to be known and designated as forest protective districts, having 
due regard in establishing the boundaries thereof, to the adequate, effective 
and economical protection of forest and range lands therein; he shall appoint 
one (1) fire warden for each of the districts of the state on the recommen- 
dation of the protection agency representing the forest land owners in each 
such district, who shall at all times be responsible to and under the direction 
and control of the director of the department of lands and shall perform such 
duties at such times and places as he shall direct. Fire wardens shall hold 
office until their appointment is revoked and the director of the department 
of lands may revoke the same at any time. The fire warden so appointed 
may, subject to approval by the director of the department of lands, appoint 
deputy fire wardens within their respective districts and such appointments 
may be revoked at any time by the fire warden or director of the department 
of lands. All the officers provided for in this act shall have and exercise police 
powers while engaged in performing the duties of their respective offices. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 

IZtt ^Miife^'JnfflSLimont *. chan S ed to director of the department of lands 

forest, wildlife and range experiment sta- & ,, . r T .,__. *\ noa „ 1 , 

tion to conduct investigations and research on authority of S.L. 1974 ch 286, § 1 and 

into protection against fire, § 38-706. S.L. 1974, ch. 17, § 3 (§ 38-101(g)). 

Publication of notices generally, § 60-109. The words "this act" in the last sentence 

Wildlife laws, arrest of violators, autho- refer to S.L. 1972, ch. 401, which is compiled 

rized, § 36-2301. as §§ 38-101 to 38-104, 38-105 to 38-131, 

Prior Laws. 38-132, and 38-133. Probably the reference 

Former § 38-110 was repealed. See Prior should be to "this chapter", being chapter 1, 

Laws, § 38-101. title 38, Idaho Code. 

RESEARCH REFERENCES 

C.J.S. — 98 C.J.S., Woods and Forests, § 5, 
14. 

38-111. Protection by owner — Assessments — Budget of protec- 
tive districts. — Every owner of forest lands in the state shall furnish or 
provide therefor, throughout the closed season, protection against the 
starting, existence or spread of fires thereon, or therefrom, in conformity 



11 FORESTRY ACT 38-111 

with reasonable rules and standards for adequate protection, to be estab- 
lished by the state board of land commissioners. An owner of forest lands 
who maintains a membership in good standing in a forest protective 
association operating under agreement with the state board of land com- 
missioners, which association maintains a standard of protection approved 
by said board and who pays the assessments to the association in the 
amounts required in this section, shall be deemed to have fully complied 
herewith. In the event the owner of any forest land shall neglect or fail to 
furnish the protection required in this section, the director of the depart- 
ment of lands shall provide such patrol and protection therefor at actual cost 
to the owner of forest lands. For private owners of forest lands whose total 
acres of forest lands are twenty-six (26) acres or more, the state board of 
land commissioners shall establish this cost not to exceed sixty-five cents 
(65^) an acre per year. For private owners of forest lands whose total acres 
of forest lands are twenty-five (25) acres or fewer, the minimum assessment 
per year shall be equal to the per acre cost multiplied by twenty-five (25). 

In addition to any other assessment prescribed in this chapter, the state 
board of land commissioners shall establish a surcharge to be levied and 
assessed in an amount not to exceed forty dollars ($40.00) for each improved 
lot or parcel to offset costs associated with wildfire preparedness. 

There is hereby established in the state treasury a wildfire equipment 
replacement fund for the replacement of capital wildfire equipment. The 
department of lands shall determine reimbursement rates for all capital fire 
equipment used for activities other than fire preparedness. Reimbursement 
revenues shall be deposited in the wildfire equipment replacement fund. 
Additional moneys may be deposited into the wildfire equipment replace- 
ment fund from any other source. 

In the event an assessment is made in an amount less than the maximum 
hereinbefore provided, and an actual loss occurs which exceeds the amount 
budgeted and for which assessments have been made, the director of the 
department of lands, with the approval of the board, may require an 
additional assessment to be made and paid, which together with the original 
assessment shall not exceed the maximum assessment set forth in this 
section. Such additional assessment shall be levied and collected in the 
same manner as herein provided for the collection of such original assess- 
ments. The liability provided in this section shall be calculated for each 
forest protection district or association separately, and shall be calculated 
solely upon the charges assignable to fire control or presuppression of fires 
within each district or association. 

Each forest protective association actively engaged in forest protection 
under agreement with the state board of land commissioners shall each year 
prepare in detail, a budget of all estimated operating costs for the next fiscal 
year and shall submit this budget to the board for approval before August 31 
of the current year. 

Except for the provisions of section 38-122, Idaho Code, and cases of 
proven negligence by the landowner or his agent, no other charges or 
assessments for fire protection shall be made or assessed or collected from 
those forest landowners participating as provided herein. 



38-112 



FORESTRY 



12 



History. 

1972, ch. 401, § 2, p. 1164; am. 1976, ch. 36, 
§ 1, p. 77; am. 1981, ch. 34, § 1, p. 53; am. 
1987, ch. 192, § 1, p. 390; am. 1993, ch. 93, 



§ 2, p. 221; am. 2003, ch. 79, § 1, p. 252; am. 
2009,ch.36,§ 1, p. 106; am. 2010, ch. 66, § 1, 
p. 114. 



STATUTORY NOTES 



Cross References. 

Closed season for fires, § 38-115. 

Director of department of lands, § 58-105. 

Enforcement of loggers' liens, § 45-401 et 
seq. 

Forest land denned, § 38-101. 

Reduction of fire hazards under supervision 
of director of the department of lands, § 38- 
401 et seq. 

State board of land commissioners, Idaho 
Const., Art. IX, § 7 and § 58-101 et seq. 

Prior Laws. 

Former § 38-111 was repealed. See Prior 
Laws, § 38-101. 

Amendments. 

The 2009 amendment, by ch. 36, in the 
next-to-last sentence in the first paragraph, 
substituted "sixty-five cents" for "sixty cents"; 



in the second paragraph, substituted "not to 
exceed forty dollars ($40.00) for each im- 
proved lot or parcel to offset costs associated 
with wildfire preparedness" for "not to exceed 
twenty dollars ($20.00) for each improved lot 
or parcel, to defray the cost of fire suppression 
on forest land caused by the existence of the 
improvements"; and added the third para- 
graph. 

The 2010 amendment, by ch. 66, in the last 
paragraph, substituted "fiscal year" for "cal- 
endar year", and substituted "August 31" for 
"June 30". 

Effective Dates. 

Section 2 of S.L. 1976, ch. 36 provided the 
act should be in full force and effect on and 
after January 1, 1977. 



JUDICIAL DECISIONS 



Decisions Under Prior Law 



Constitutionality. 

Charges levied against land under former 
provisions providing for charges for fire pro- 
tection by the state where the owner ne- 
glected to furnish such protection did not 
constitute double taxation. Chambers v. 
McCollum, 47 Idaho 74, 272 P. 707 (1928). 

Provision of former law authorizing state 
forester (now director of the department of 
lands) to determine whether or not owner of 
forest land has provided adequate protection 



against starting, existence, and spread of fires 
was not denial of due process. Chambers v. 
McCollum, 47 Idaho 74, 272 P. 707 (1928). 

Provision of former law permitting state 
forester (now director of the department of 
lands) to charge forest lands with actual cost 
of fire protection rendered in case owner fails 
to provide protection was not denial of due 
process. Chambers v. McCollum, 47 Idaho 74, 
272 P. 707 (1928). 



RESEARCH REFERENCES 



C.J.S. — 98 C.J.S., Woods and Forests, § 5. 



38-112. Charges a lien — Method of collection. — Any amounts due 
under the preceding section and approved by the board for that purpose 
shall be a lien on the property protected, and shall be collected as follows: 

On or before the first Monday in July of each year, the association 
secretary shall determine the names of all owners of forest lands within the 
boundaries of the particular forest protective association who have failed to 
provide the forest fire protection for their lands required by this act, 
together with the description of such lands and the acreage thereof and 
calculate the total amount due hereunder from each such owner for such 
forest fire protection which shall not exceed the maximum hereinbefore 
specified. The association secretary shall deliver such information to the 



13 FORESTRY ACT 38-113 

director of the department of lands not less than ten (10) days before the 
first Monday in August of each year. 

By the first Monday in August of each year, the director of the department 
of lands shall have prepared a list of all amounts charged under this section 
against property protected, and upon request received from any owner 
thereof, shall render the latter a statement of the sum so due from such 
owner; upon further request made to said director within ten (10) days 
following said first Monday in August, any such owner shall be granted a 
hearing before the board on or before the last Monday in August. Said board 
shall then either approve or revise all sums to be collected, and the director 
of the department of lands shall certify each and every current amount to 
the auditor of the county or counties in which such property is situated not 
later than the first Monday in September following. Upon receiving such 
certificate from the director of the department of lands showing the amounts 
due, the auditor shall extend the amounts so certified upon the county tax 
rolls covering such property, and such sums shall be collected in the same 
manner and at the same time and with like penalties as general state and 
county taxes upon the same property are collected. When collected, such 
sums shall immediately be paid into the forest protection fund to be applied 
by the director of the department of lands to expenses incurred, accrued 
and/or contracted for in carrying out the provisions of this section. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. changed to director of the department of lands 

Director of department of lands, § 58-105. on authority of S.L. 1974, ch. 286, § 1 and 

Fire warden denned, § 38-101. qT 1074 r i, 17 s q , s q« im ^ 

Forest protection fund, § 38-129. SK 1974 ' ch * 17 ' * 3 (§ 38 " 101 te))- 

The words "this act" refer to S.L. 1972, ch. 

Prior Laws. 401, which is compiled as §§ 38-101 to 38- 

Former § 38-112 was repealed. See Prior 104 38 _ 105 to 38 _ 131> 38 _ 132 and 38 . 133 



Laws, § 38-101. 



Probably the reference should be to "this 



Compiler's Notes. chapter", being chapter 1, title 38, Idaho 

The name of the state forester has been Code. 

38-113. Purchaser of forest products responsible for protection 
— Liens. — When the owner of forest land shall have sold timber and/or 
other forest products or potential forest products thereon to another, 
retaining the land, the owner of the timber and/or other forest products or 
potential forest products shall be responsible for providing the protection 
required by section 38-111, Idaho Code, for that portion of the land covered 
by his uncut timber and/or other forest products or potential forest products 
and for the area he has cut over during the year up to the end of the closed 
season, and for any areas he has cut over without complying with the forest 
fire and slash disposal laws of the state, and if he fails, neglects or refuses 
to provide the protection required by section 38-111, Idaho Code, the director 
of the department of lands shall provide such patrol and protection at the 
cost per acre to said owner at the rates therein established. Any amounts 
due and unpaid for this purpose shall be a lien upon the remaining standing 



38-114 FORESTRY 14 

timber and/or other forest products or potential forest products and upon the 
timber and/or other forest products theretofore cut and/or removed or 
remaining on the ground and may be collected through extension upon the 
tax rolls covering such property as in section 38-112, Idaho Code, provided 
for collection of similar liens upon forest land; provided, that if the director 
of the department of lands shall deem such property to be inadequate 
security, the lien, unless promptly paid on demand of the director of the 
department of lands, may be by him perfected and enforced as loggers' liens 
are perfected and enforced, or such amounts, together with any expenses 
rendered necessary, may be recoverable from the offender by a civil action 
for debt prosecuted in the name of the state of Idaho. Any recovery shall be 
paid to the state treasurer for deposit in the forest protection fund. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 

Forest protection fund, § 38-129. changed to director of the department of lands 

Prior T »w«s 0n authorit y of SL - 1974 > ch - 286 > § 1 and 

Former § 38-113 was repealed. See Prior SL ' 1974 ' ch ' 17 > § 3 « 38 - 101 ^ 
Laws, § 38-101. 

38-114. State to pay pro rata for fire protection — Deficiency 
warrants. — The state shall bear and pay into the forest protection fund its 
pro rata share of the assessments provided for in section 38-111, Idaho Code, 
for fire protection to state lands and expenses incurred, accruing or 
contracted for within each forest protective district in enforcing and carry- 
ing out the provisions of this chapter and protecting the forest lands 
belonging to the state against damage, devastation or destruction by fire, in 
the proportion which such lands belonging to the state within each forest 
protective district of the state bear to the total area of forest land within 
such protective district, and the state shall be considered an owner of forest 
land within the meaning of that term as used in this chapter, and for the 
purposes thereof. The state board of land commissioners may authorize the 
issuance of deficiency warrants for the purpose of defraying such assess- 
ments, and when so authorized the state controller shall draw such 
deficiency warrants against the general fund. Such moneys as the state 
shall thus become liable for shall be paid as a part of the expenses of the 
state board of land commissioners out of appropriations which shall be made 
by the legislature for that purpose. In all appropriations hereafter made for 
expenses of said state board of land commissioners, account shall be taken 
of and provision made for this item of expense. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1994, ch. 
180, § 64, p. 420. 



15 FORESTRY ACT 38-115 

STATUTORY NOTES 

Cross References. that such act should become effective on and 
Forest protection fund, § 38-129. a ft e r the first Monday in January, 1995 [Jan- 
State board of land commissioners, Idaho 2 1995] tf ^ amendment to the Con- 
Const., Art. IX, § 7 and § 58-101 et seq. ..... r T j i. i_ .u. r^ 

State controller, § 67-1001 et seq. stitution of Idaho changing the names of the 

state auditor to state controller [1994 S.J.R. 

Prior Laws. No 109> p 1493 ] was adopted at the general 

Former § 38-114 was repealed. See Prior election heM Qn November 8? 1994> Since such 



Laws, § 38-101 



amendment was adopted, the amendment to 



Effective Dates. this section by § 64 of S.L. 1994, ch. 180 

Section 241 of S.L. 1994, ch. 180 provided became effective January 2, 1995. 

38-115. Closed season for fires — Permits — Regulations — 
Extension of closed season — Suspension of permits — Penalty. — 

The period from May 10 to October 20, inclusive, of each year shall be known 
as the closed season. During the closed season it shall be unlawful for any 
person to set or cause to be set a fire in any slashing area, or a fire to any 
stump or stumps, log or logs, down or standing timber or to set or cause to 
be set, a fire on any forest or range lands or dangerously near thereto, or in 
any field in any forest protective district, without having first procured a 
permit from the fire warden of the district, provided, that unless campfires 
have been prohibited during critical hazard periods, campfires may be set 
without permit provided there is compliance with the provisions of section 
38-116, Idaho Code. Every permit shall prescribe the conditions upon which 
the permit is given, and contain rules and regulations governing the setting 
of fires and the prevention of the spread thereof to the property of another. 
At no time shall any fire be set when the wind is blowing to such an extent 
as to cause danger of the fire getting beyond the control of the person 
responsible for setting it, or without sufficient men, tools, supplies and 
firefighting equipment to control it, and the fire shall be kept under the 
control of the person responsible for setting it until it is out. The state board 
of land commissioners shall from time to time make all necessary rules and 
regulations governing the setting of fires on forest lands for both the closed 
and open season, and for their proper control and extinguishment. It shall 
be the duty of the director of the department of lands to prepare the proper 
form of permit to be used in carrying out the provisions of this section. The 
fire wardens shall at all times have authority to refuse permits and/or to 
revoke the same and to postpone their use when issued, when they shall 
deem it necessary so to do in the interest of public safety. Any permits 
obtained by misrepresentation shall be invalid. 

In seasons, localities and under conditions of unusual fire danger, the 
director, with the advice of the fire warden of any protective district, shall 
have the power to extend the period of closed fire season in any district of the 
aforementioned districts to meet the particular fire hazard of each district, 
and when the safety of the public requires, change the closed season in any 
district by fixing inclusive dates other than those herein designated; close to 
entry therein by any person or party, the forest and range lands in any 
section of the state wherein a critical fire hazard exists, and may restrict or 
suspend travel on any road or trail leading into any such land, until a permit 
shall have secured from the fire warden of the forest protective district 



38-116 FORESTRY 16 

wherein such lands are situated, and may also, without proclamation, 
suspend any and all permits or privileges authorized by this section and 
prohibit the setting of any campfires, and/or fire in forest and range land or 
dangerously near to such, or in fields in any forest protective district. 

Any violation of the provisions of this section shall be deemed a misde- 
meanor. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1974, ch. 17, 
§ 7, p. 308. 

STATUTORY NOTES 

Cross References. State board of land commissioners, Idaho 

Director of department of lands, § 58-105. Const., Art. EK, § 7 and § 58-101 et seq. 

Fire warden denned, § 38-101. 

Forest land defined, § 38-101. Prior Laws. 

Penalty for misdemeanor when not other- Former § 38-115 was repealed. See Prior 

wise provided, § 18-113. Laws, § 38-101. 

JUDICIAL DECISIONS 

Decisions Under Prior Law 

Constitutionality. of lands) or fire warden is not denial of due 

Provisions against setting of described fires process. Chambers v. McCollum, 47 Idaho 74, 

during closed season without permission from 272 P. 707 (1928). 
state forester (now director of the department 

RESEARCH REFERENCES 

C.J.S. — 98 C.J.S., Woods and Forests, § 5. 

38-116. Campfires — Acts prohibited — Penalty. — (1) No person 
shall during the closed season: 

a. 7Set or cause to be set a campfire upon forest or range lands without 
clearing the ground immediately around such fire free from material 
which will carry fire. 

b. Set or cause to be set a campfire against a stump, log, living or dead 
trees, or snag or dangerously near to any material which will carry fire. 

c. Set or cause to be set a campfire when the wind is blowing to such an 
extent as to cause danger of the campfire spreading. 

d. Set or cause to be set a campfire at a camping place incompatible with 
public safety and not in compliance with all the provisions of this chapter. 

e. Leave a campfire burning or unattended. 

f. Permit a campfire to spread. 

(2) Violation of any of the provisions of this section shall be deemed a 
petty misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 



17 FORESTRY ACT 38-118 

STATUTORY NOTES 

Cross References. of director of the department of lands, § 38- 

Closed season for fires, § 38-115. 401 et sec l- 

Fire warden defined, § 38-101. a Throwing, depositing or leaving lighted, 

Firing timber or prairie lands a misde- flamin | or glowmg substance which may 

c 1 o nrtA a cause fire resulting in damage to forage on 

meanor § 18-7004. federal or state lands, § 18-7005. 

Forest land defined, § 38-101. 

Penalty for misdemeanor when not other- Prior Laws. 

wise provided, § 18-113. Former § 38-116 was repealed. See Prior 

Reduction of fire hazards under supervision Laws, § 38-101. 

38-117. Throwing away lighted material — Penalty. — It shall be 
unlawful during the closed season for any person to throw away any lighted 
tobacco, cigar, cigarette, match, firecracker, fireworks or other lighted 
material of any kind on any forest or range land of this state. Any person 
violating any of the provisions of this section shall be deemed guilty of a 
petty misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. flaming or glowing substance which may 

Closed season for fires, § 38-115. cause fire resulting in damage to forage on 

Firing timber or prairie lands a misde- federal or state lands, § 18-7005. 

meanor, § 18-7004. 

Penalty for misdemeanor when not other- Prior Laws. 

wise provided, § 18-113. Former § 38-117 was repealed. See Prior 

Throwing, depositing, or leaving lighted, Laws, § 38-101. 

38-118. Duty of railroads — Penalties. — During the closed season 
everyone operating a common carrier railroad shall keep all right of way, 
station grounds and other operating property in, contiguous or adjacent to 
forest or range lands clear and free from all combustible and flammable 
material, matter or substances, except freight, express and mail supplies, 
structures, equipment and material necessary, usual or convenient for the 
construction, maintenance and/or operation of such railroad. 

During the said closed season, no person operating or maintaining such a 
railroad shall permit any of his or its employees to leave a deposit of fire, live 
coals or hot ashes in the immediate vicinity of forest or range lands or of 
other lands liable to be overrun by fire. 

All clearing by burning under the provisions of the section shall be in 
accordance with the provisions of this act applicable to the season during 
which said burning is done. 

Refusal or neglect to comply with the provisions of this section shall be 
deemed a petty misdemeanor for each offense; provided, that the director of 
the department of lands, with the consent of the board, may suspend the 
restrictions of this section when and where he deems safety so permits. It is 
further provided, that in the absence of such suspension, and in case of 
refusal or neglect by the person at fault, after proper notice, to take the 
precautions against fire required by public safety and the provisions of this 



38-118 



FORESTRY 



18 



act, the director of the department of lands, or district fire warden, acting 
with his consent, may have the work done to the extent that he deems 
requisite to public safety, and the costs thereof and the expense of any fire 
patrol rendered necessary by the offender's neglect, plus a penalty often per 
cent (10%) shall be recoverable from the offender by civil action, prosecuted 
in the name of the state of Idaho. Any recovery shall be paid to the state 
treasurer for deposit in the forest protection fund. 



History. 

1972, ch. 401, § 2, p. 



1164. 



STATUTORY NOTES 



Cross References. 

Closed season for fires, § 38-115. 
Director of department of lands, § 58-105. 
Forest lands defined, § 38-101. 
Forest protection fund, § 38-129. 
Penalty for misdemeanor when not other- 
wise provided, § 18-113. 

Prior Laws. 

Former § 38-118 was repealed. See Prior 
Laws, § 38-101. 



Compiler's Notes. 

The name of the state forester has been 
changed to director of the department of lands 
on authority of S.L. 1974, ch. 286, § 1 and 
S.L. 1974, ch. 17, § 3 (§ 38-101(g)). 

The words "this act" refer to S.L. 1972, ch. 
401, which is compiled as §§ 38-101 to 38- 
104, 38-105 to 38-131, 38-132, and 38-133. 
Probably the reference should be to "this 
chapter", being chapter 1, title 38, Idaho 
Code. 



JUDICIAL DECISIONS 

Decisions Under Prior Law 
Analysis 



Civil liability. 

Construction of statute. 

Evidence of condition at other places. 

Evidence of other fires. 

Fire off of right of way. 

Negligence. 

Third party setting fire. 



Civil Liability. 

Incurring the penalty provided in former 
law that provided that land on right of way 
adjacent to forest land was to be kept free 
from combustible material renders a railroad 
company civilly liable to one suffering dam- 
ages. Spokane Int'l Ry. v. United States, 72 
F.2d 440 (9th Cir. 1934). 

Construction of Statute. 

Former laws regulating railroad rights of 
way near forest land could not have been 
considered as imposing on defendant a stan- 
dard of care impossible of fulfillment, but if 
there was nothing to show that grass or other 
inflammable materials could not have been 
removed either by burning them off the rail- 
road right of way during the closed season 
under permit provided for in former law, or by 
plowing over the right of way, the evidence 
would have sufficed to justify a finding of the 
violation, thereby rendering the railroad com- 



pany liable. Spokane Int'l Ry. v. United 
States, 72 F.2d 440 (9th Cir. 1934). 

Evidence of Condition at Other Places. 

Evidence of the condition of the railroad 
company's right of way in immediate proxim- 
ity to the place of fire is admissible, such 
evidence showing the accumulation of com- 
bustible materials thereon. Spokane Int'l Ry. 
v. United States, 72 F.2d 440 (9th Cir. 1934). 

Evidence of Other Fires. 

Evidence of other fires occurring by com- 
bustible materials having been set on fire on 
defendant's right of way during the same 
summer but before the fire in question was 
admissible. Spokane Int'l Ry. v. United States, 
72 F.2d 440 (9th Cir. 1934). 

Fire Off of Right of Way. 

Where a fire is set by sparks outside of the 
railroad company's right of way by another, 
former law providing for removal of combus- 



19 FORESTRY ACT 38-120 

tible material on railroad right of way near action if fire results. Curoe v. Spokane & 

forest did not apply, unless it was shown in I.E.R.R., 32 Idaho 643, 186 P. 1101 (1920). 

some way that the failure to comply with such „». j „ . ^. 

former law contributed to the spread of the Th A ird ^ art Y Setting Fire. 

fire. Spokane Int'l Ry. v. United States, 72 A rai i ro * d company is liable under the 

F 2d 440 (9th Cir 1934) terms of this section when the fire is set to 

inflammable material accumulated on its 

Negligence. right of way, and it is immaterial whether 

Railroad company's violation of law by per- such material is set fire by the engine or other 

mitting accumulation of combustible material equipment of the railroad company or by the 

on its right of way during closed season may act of a third party. Spokane Int'l Ry. v. United 

constitute negligence and give rise to cause of States, 72 F.2d 440 (9th Cir. 1934). 

RESEARCH REFERENCES 

Am. Jur. — 35 Am. Jur. 2d, Fires, §§ 8-11. damages from spread of accidental fire origi- 
A.L.R. — Liability of property owner for nating on property. 17 A.L.R.5th 547. 

38-119. Notification of fires by railroad employees — Penalty. — 

(1) During the closed season any employee of a railroad who, in the course 
of his employment, shall see a fire on or near the right of way, station 
grounds or other operating property of such railroad in, contiguous or 
adjacent to forest or range lands, shall immediately report such information 
to a fire warden. If such fire is on or spread from the railroad right of way, 
station grounds or other operating property of such railroad such employee 
or any other person in authority shall take all reasonable and prudent 
measures to control and extinguish such fire. 

(2) A violation of any of the provisions of this or the next succeeding 
section shall be deemed a petty misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Prior Laws. 

Closed season for fires, § 38-115. Former § 38-119 was repealed. See Prior 

Fire warden denned, § 38-101. Laws, § 38-101. 

Penalty for misdemeanor when not other- 
wise provided, § 18-113. 

38-120. Instruction to employees of railroads. — It shall be the 
duty of every person operating a railroad through any forest protective 
district to keep employees fully instructed as to their duties relating to the 
reporting, control and prevention of forest or range fires as provided in this 
chapter. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 



Prior Laws. 

Former § 38-120 was repealed. See Prior 
Laws, § 38-101. 



38-121 FORESTRY 20 

38-121. Operation of engines without adequate protection — 
Penalty — Injunction. — During the closed season it shall be unlawful for 
any person to use or operate on or near to forest or range land any steam or 
internal combustion engine which is not equipped and maintained in 
conformity with rules and regulations promulgated by the state board of 
land commissioners. Any person who shall fail to comply with such rules and 
regulations shall be guilty of a petty misdemeanor. Such person may also be 
enjoined from further use of such engine until it is equipped and maintained 
in conformity with such rules and regulations. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Prior Laws. 

Closed season for fires, § 38-115. Former § 38-121 was repealed. See Prior 

Penalty for misdemeanor when not other- Laws, § 38-101. 
wise provided, § 18-113. 

State board of land commissioners, Idaho 
Const., Art. IX, § 7 and § 58-101 et seq. 

JUDICIAL DECISIONS 

Cited in: State v. Nastoff, 124 Idaho 667, 
862 P.2d 1089 (Ct. App. 1993). 

38-122. Protection by logging outfits — Fire suppression account 
— Liability for fire suppression costs — Penalty. — (1) Everyone 
engaged, or about to engage, in the cutting of any forest product or potential 
forest product upon lands within the state of Idaho shall provide for the 
management and reduction of the fire hazard thus created or to be created 
by first securing a certificate of compliance from the director of the 
department of lands or his agent, said compliance to provide the option of 
entering into a fire hazard reduction agreement as provided in sections 
38-401 through 38-410, Idaho Code, inclusive, or by posting a cash bond to 
the state of Idaho in such form and for such amount as may be prescribed by 
the director of the department of lands: provided, however, that the amount 
of the bond so prescribed shall not be in excess of the amount which such 
person would be required to pay under said sections 38-401 through 38-410, 
Idaho Code, inclusive, and that the bond shall be conditioned upon full and 
faithful compliance with all requirements under said sections 38-401 
through 38-410, Idaho Code, inclusive, and the faithful reduction of such fire 
hazards in the manner prescribed by law. Provided further that the initial 
purchaser of ties, logs, posts, cordwood, pulpwood and other similar forest 
products which have been cut from lands within the state of Idaho shall 
make no such purchase from anyone not having a proper compliance under 
this section and formal acceptance of notification under subsection (2) of 
section 38-1306, Idaho Code. When a person elects to have hazard reduction 
money withheld in lieu of posting a cash bond, the purchaser of forest 
products shall withhold the money and said money so withheld in any one 
(1) calendar month shall be paid to the director of the department of lands 



21 FORESTRY ACT 38-122 

or his agent on or before the last day of the next calendar month. After 
sending such moneys to the director of the department of lands the 
purchaser shall not be further liable to the state of Idaho or to the person 
from whom the money was withheld. The director of the department of 
lands, upon receipt of the cash bond or transmittal of withheld money, shall 
promptly deposit the same with the state treasurer to be held in trust until 
the hazard has been reduced as required by law. Such hazard reduction 
shall be accomplished by the responsible party within the terms set forth in 
the certificate of compliance or such additional time as may be granted by 
the director of the department of lands, and upon completion thereof, the 
director of the department of lands or his agent shall issue a certificate of 
clearance, stating that all the terms of this section have been complied with. 
Such clearance shall constitute reason for the release of said hazard 
reduction money and payment to the person entitled thereto or release of 
the cash bond posted, except that: (a) three percent (3%) of the hazard 
reduction money or bond shall be deposited in a special account to be known 
as the fire suppression account, which is hereby created in the dedicated 
fund of the state treasury, and which shall be used by the department of 
lands to help pay the cost of suppressing forest fires; and (b) as determined 
by the state board of land commissioners, for harvest from private land, an 
additional amount, not to exceed three percent (3%) of the hazard reduction 
money or bond shall be deposited in the forest practices administration 
account established in section 38-135, Idaho Code, for the purpose of 
carrying out the provisions of the forest practices act, section 38-1301 et 
seq., Idaho Code. In the event the hazard reduction shall not be accom- 
plished within said period of time, the money shall be released by the state 
treasurer on direction from the director of the department of lands less the 
three percent (3%) deduction specified for the fire suppression account and 
for harvest from private land, the deduction specified by the state board of 
land commissioners for the forest practices administration account, and 
credited to the "forest management account" for the management and 
reduction of any fire hazard and for the protection of forest resources as 
provided by section 38-408, Idaho Code. 

(2) With the exception of cases of negligence on the part of the landowner, 
operator or their agents, liability for the cost of suppressing fires that 
originate on or pass through a slashing area shall remain with the state 
forester [director of the department of lands] if one of the following 
alternatives is executed by the landowner or operator: (a) the slashing area 
is covered by a certificate of compliance and all hazard money payments are 
current or a proper bond is in place; (b) the landowner or operator treats the 
slash in accordance with rules adopted by the state board of land commis- 
sioners that are in effect during the period covered by the certificate of 
compliance or approved extensions; or (c) the landowner or operator elects to 
enter into a contract with the state forester [director of the department of 
lands] for the management of the slash and liability of fire suppression costs 
in accordance with section 38-404, Idaho Code. 

Should the landowner or operator choose not to treat the slash or not 
enter into a contract with the state forester [director of the department of 
lands] in accordance with section 38-404, Idaho Code, the landowner or 



38-123 FORESTRY 22 

operator shall, in addition to forfeiting the bond provided for in section 
38-122, Idaho Code, be subject to the provisions of section 38-123, Idaho 
Code, and his liability, if any, for fire suppression costs up to the limits set 
by the state forester [director of the department of lands], shall exist for a 
period of five (5) years following completion of the operation for all fires that 
originate in or pass through the landowner's or operator's slashing area, 
except that the landowner or operator may choose to pay an additional fee, 
to be determined by the director, upon payment of which the director will 
assume the liability for the cost of suppressing fires that originate in or pass 
through the slashing area. 

(3) A violation of any of the provisions of this section shall be deemed a 
petty misdemeanor. 

History. 192, § 2, p. 390; am. 1989, ch. 154, § 1, p. 

1972, ch. 401, § 2, p. 1164; am. 1987, ch. 365; am. 1994, ch. 152, § 1, p. 347. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The bracketed insertions, in both para- 
Fire warden defined, § 38-101. graphs of subsection (2), were added by the 
Penalty for misdemeanor when not other- compi i er to update the name of the referenced 

m Q?oS°^fi« J & lil ini state officer. See S.L. 1974, ch. 17, § 3, S.L. 

blasn denned, § 38-101. in _. , noc „ . , „ ' ini ' ' 

State board of land commissioners, Idaho 1974 > ch - 286 > § l > aAd § 38 - 101 - 

Const., Art. IX, § 7 and § 58-101 et seq. 

Prior Laws. 

Former § 38-122 was repealed. See Prior 
Laws, § 38-101. 

38-123. Disposal of slash — Injunction against further cutting — 
Disposal at expense of owner — Lien and enforcement — Orders. — 

In the event one responsible therefor shall fail, refuse or neglect to properly 
dispose of slash in accordance with the requirements of section 38-122, 
Idaho Code, and such person responsible therefor is engaged or is about to 
engage, either for himself or for another, in cutting timber or other forest 
products, and thereby creating a fire hazard anywhere within the state, he 
may be enjoined from cutting such timber or other forest products and 
thereby creating a fire hazard until he shall have complied with the 
provisions of section 38-122, Idaho Code. Such injunction proceedings may 
be instituted by the director of the department of lands as plaintiff and the 
court may in its discretion grant a temporary injunction. In any such 
proceedings no bond shall be required of the plaintiff and such a proceeding 
shall be handled in any court by the judge thereof with expedition. 

If one responsible therefor has for any reason failed to comply with section 
38-122, Idaho Code, and has without such compliance cut timber or other 
forest products, and shall fail, refuse or neglect to properly dispose of slash 
for a period of thirty (30) days after being notified so to do by the director of 
the department of lands or the fire warden of the forest protective district 
within which such slash has accumulated, the director of the department of 
lands, or the fire warden, may, if he deems it advisable, complete, direct or 
authorize the disposal of such slash at the expense of the owner of the 
timber or other forest products cut or produced from the land upon which 
such fire hazard remains undisposed of as aforesaid. 



23 FORESTRY ACT 38-123 

The cost and expense of such disposal, plus twenty per cent (20%) of the 
cost and expense of such disposal as a penalty, shall constitute a prior lien 
upon the timber and/or other forest products so cut or produced from such 
land. If payment of such cost and penalty be not made within ten (10) days 
after demand in writing, the director of the department of lands shall file for 
record with the county recorder of the county in which such timber or other 
forest products were cut, or, if the same have been removed to another 
county, then in such county, a notice of lien upon any and all forest products 
cut from the area of slash undisposed of as aforesaid, and such lien shall also 
attach to all identifiable processed products thereof, and the perfection of 
such lien rights shall as nearly as practicable be in conformity with the 
provisions of section 45-407, Idaho Code, so far as the same is applicable, 
and duly verified as therein provided. Any claims of lien recorded as herein 
provided shall be released in writing by the director of the department of 
lands upon payment of the cost and penalty herein provided. After the filing 
of notice of lien, any purchaser or purchasers of any of such forest products 
who have disposed of the same or who shall have so mingled such forest 
products or the processed products thereof with other property as to prevent 
identification of such forest products, and thereby prevent the sale of any 
such products in such foreclosure proceedings, shall be liable for the full 
amount of the judgment recovered, provided such purchaser is made a party 
defendant in the suit for the foreclosure of lien. The proceedings for the 
enforcement of said lien shall conform as nearly as may be to the proceed- 
ings provided by law for the enforcement of loggers' lien, or the amount of 
such cost and penalty may be recovered by a civil action for debt, prosecuted 
in the name of the state of Idaho, and payable to the state treasurer for 
deposit in the forest protection fund. 

The director of the department of lands shall not file for record any lien 
against the property of any person who has been issued a certificate of 
clearance in accordance with section 38-122, Idaho Code, covering such 
property. 

All orders and directions issued by the director of the department of lands, 
or any fire warden, as required or authorized by this section and section 
38-122, Idaho Code, shall be in writing and made in triplicate, the original 
of which shall be sent by registered mail or delivered by personal service to 
the person to receive such order, permits or directions; one (1) copy shall be 
filed in the office of the director of the department of lands; and one (1) copy 
shall be filed in the district warden's file. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1987, ch. 
192, § 3, p. 390. 

STATUTORY NOTES 

Cross References. ity for reduction of fire hazards, § 38-404. 

Director of department of lands, § 58-105. Enforcement of loggers' liens, § 45-401 et 

Director of the department of lands may seq. 

contract with owners and assume responsibil- Forest protection fund, § 38-129. 



38-124 FORESTRY 24 

Slash defined, § 38-101. 
Prior Laws. 

Former § 38-123 was repealed. See Prior 
Laws, § 38-101. 

JUDICIAL DECISIONS 

Decisions Under Prior Law 
Analysis 

Construction. 
Validity of lien. 
Waiver. 

Construction. another company might be responsible for the 

The language of former lien statutes in cost f t h e burning of the slash. Diamond 

regard to timber cut intc > logs and removal I of Nafl c y L 333 R2d 51? (9th Cir 



1964). 



slash did not require that the lienor assert his 
lien against any particular parcel or parcels of 

lumber. Diamond Nat'l Corp. v. Lee, 333 F.2d Waiver. 

517 (9th Cir. 1964). Waste state claimed a lien against non- 
Validity of Lien. warehoused logs and lumber, but not against 
Substantial evidence supported referee's remainder of the lumber on the debtor's pre- 
finding that the state's lien against lumber mises, such was not a waiver of the right to 
company for the cost of slash disposal on the collect the entire sum due. Diamond Nat'l 
logged-ofif premises was not invalid, although Corp. v. Lee, 333 F.2d 517 (9th Cir. 1964). 

38-124. Precautions in disposal of slash — Separate offenses — 
Penalty. — Everyone making disposal of slash on forest land as provided for 
in this chapter shall use care to prevent fire from spreading to other forest 
land or the creation of further fire hazard by damage to timber growth left 
standing, and shall have sufficient men, tools, supplies and firefighting 
equipment on hand for that purpose, and when the burning has been 
completed, or when ordered by the fire warden, shall cause the fire to be 
totally extinguished without delay. Disposal of slash under the terms of this 
chapter shall be in accordance with the law requiring burning permits 
during the closed season. 

Violation of any of the provisions of this chapter on any legal subdivision, 
shall constitute a separate and distinct offense and shall be deemed a 
misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. of director of the department of lands, § 38- 

Closed season for fires, § 38-115. 401 et seq. 

Fire warden defined, § 38-101. Slash defined, § 38-101. 

Penalty for misdemeanor when not other- Prior Laws. 

wise provided, § 18-113. Former § 38-124 was repealed. See Prior 

Reduction of fire hazards under supervision Laws, § 38-101. 



25 FORESTRY ACT 38-125 

RESEARCH REFERENCES 

A.L.R. — Liability for spread of fire inten- 
tionally set for lawful purpose. 25 A.L.R.5th 
391. 

38-125. Clearing rights of way — Precaution in clearing — Appli- 
cation to public work — Penalty — Injunction. — Everyone clearing 
right of way for any railroad, public or private highway or road, public trail, 
public utility, logging road, trail, ditch, dike, pipe line or wire line, or any 
other transmission or transportation utility right of way, shall safely dispose 
of all refuse timber, brush, slash or debris cut for such clearing or resulting 
from the cutting of material for the construction of such right of way Said 
piling and burning shall be done as rapidly as cutting and clearing 
progresses; provided, that upon application to the director of the department 
of lands, he may grant a permit extending the time within which such 
burning must be done; provided, further, that if such work be done during 
the closed season it must be done in compliance with all the provisions of 
this chapter relating to burning permits during the closed season. 

The provisions of this section shall apply to all clearing of rights of way on 
behalf of the state, county, highway districts and road districts, whether the 
work be done by day labor, or by contract, and unless unavoidable emer- 
gency prevents, provisions shall be made by the proper officials conducting, 
directing, or letting said work, for withholding until it is complete, a 
sufficient portion of the payment therefor to insure compliance with this 
chapter. 

Violation of any provisions of this section shall be deemed a misdemeanor. 

In addition to the penalty herein provided, the offender may be enjoined 
at the instance of the director of the department of lands, or of the fire 
warden of the district, from proceeding with such work until the provisions 
of this section shall have been complied with; and, upon application of the 
director of the department of lands, or of the fire warden of the district, to 
any court of competent jurisdiction, a writ of mandate shall issue compelling 
the offender to fully comply with the provisions hereof. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 

Fire warden denned, § 38-101. changed to director of the department of lands 

™ ^f 1 y a°a T S 4 e TQ an0r WhGn n0t ° ther " on authority of S.L. 1974, ch. 286, § 1 and 

W sLKefinei, fsflOl. S.L. 1974, ch. 17, § 3 (* 38-101(g)). 

Prior Laws. 

Former § 38-125 was repealed. See Prior 
Laws, § 38-101. 



38-126 FORESTRY 26 

RESEARCH REFERENCES 

Am. Jur. — 35 Am. Jur. 2d, Fires, §§ 2, 20 A.L.R. — Liability of property owner for 

et seq. damages from spread of accidental fire origi- 

C.J.S. — 98 C.J.S., Woods and Forests, § 3 nating on property. 17 A.L.R.5th 547. 
et seq. 

38-126. Interference with protective agencies — Penalty. — Any 

person who shall wilfully or maliciously do any act or thing tending to 
interfere with the efficient use and operation by any forest protective agency 
provided for by this chapter or operating under agreements with the director 
of the department of lands, of its tools, supplies and equipment, or with the 
performance of its duties, shall be guilty of a misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 



Prior Laws. 



changed to director of the department of lands 
on authority of S.L. 1974, ch. 286, § 1 and 



Former § 38-126 was repealed. See Prior s L 1974) ch 17> § 3 (§ 38 _ioi( g )) 
Laws, § 38-101. 

38-127. Destruction of signs and warnings — Penalties. — Any 

person who shall wilfully or maliciously destroy, deface, disfigure, or 
needlessly remove any sign, poster, warning or notice posted under the 
provisions of this chapter or by any forest protective agency cooperating 
with the state under this chapter, shall be guilty of a petty misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Prior Laws. 

Penalty for misdemeanor when not other- Former § 38-127 was repealed. See Prior 

wise provided, § 18-113. Laws, § 38-101. 

38-128. Duties of prosecuting attorneys and attorney general. — 

At the discretion of the director of the department of lands, it shall be the 
duty of the attorney general or the prosecuting attorney of the county within 
which such action lies, to prepare, upon information furnished by the 
director of the department of lands or the fire warden of any forest protective 
district, and foreclose all liens, other than those provided for in sections 
38-111, 38-112 and 38-113, Idaho Code, and to prosecute in the name of the 
state of Idaho all actions for the recovery of penalties and costs and expenses 
incurred by the director of the department of lands, his deputy or fire 
warden of the district in carrying out the provisions of this chapter. For the 
purposes of this section, venue shall be determined subject to the terms of 
applicable Idaho law at the time of the incident. Civil actions against 
nonresidents of the state shall be prosecuted by the attorney general. 



27 FORESTRY ACT 38-129 

Whenever any arrest shall have been made for the violation of any 
provisions of this chapter, or whenever any evidence, which shows with 
reasonable certainty any such violation, shall have been lodged with him, 
the prosecuting attorney of the county in which the criminal act was 
committed must prosecute the offender with all diligence and energy. 

History. 

1972, ch. 401, § 2, p. 1164; am. 2003, ch. 27, 
§ 1, p. 100. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The name of the state forester has been 

Fire warden defined, § 38-101. changed to director of the department of lands 

p . T on authority of S.L. 1974, ch. 286, § 1 and 

FormerT38-128 was repealed. See Prior SL " 1974 > ch ' 17 ' § 3 <* 38 - 101 ^ 
Laws, § 38-101. 

38-129. Forest protection fund — Custody, sources and appropri- 
ation — Disbursement. — The state treasurer shall be custodian of a fund 
known as the "forest protection fund" into which shall be paid all owners' 
assessments, penalties and costs recovered in actions authorized by this 
chapter, and a portion of all fines as provided in the succeeding section and 
all funds accruing or received under any other provision of this chapter 
including all funds allocated by the United States under the act of March 1, 
1911 (36 Stat. 96) and amendments thereto, known as the Weeks law, and 
the act of June 7, 1924, known as the Clarke-McNary act, and all other 
federal acts for forest fire protection. All moneys in existing forest protection 
or foresters' special fund are hereby transferred to the forest protection fund 
established hereby. 

All moneys appropriated for, accruing to or received by this fund are 
hereby appropriated for the purposes of this chapter and shall be paid out by 
the state treasurer only upon state vouchers prepared and approved by the 
director of the department of lands and approved by the state board of 
examiners. All disbursements, costs and expenses accruing, contracted for 
and/or incurred by the director of the department of lands in administering 
the provisions of this chapter and in carrying out the agreements authorized 
by section 38-104, Idaho Code, and not otherwise provided for shall be paid 
from this fund; provided, that disbursements of such portions of this fund as 
are represented by allotments to the state under the Weeks law and the 
Clarke-McNary act and other federal acts for forest fire protection shall be 
limited to the purpose for which such allotments are made by the federal 
government. 

The director of the department of lands may convert the money derived 
from this fund into a revolving fund as may be necessary or into a general 
expense fund for the payment of such disbursements as are herein provided 
for. 

History. 

1972, ch. 401, § 2, p. 1164. 



38-130 FORESTRY 28 

STATUTORY NOTES 

Cross References. McNary Act (43 Stat. 655), referred to in this 

State board of examiners, § 67-2001 et seq. section, are compiled as 16 USCS §§ 499, 

505, 515, 568, 569, and 570. 
Prior Laws. 

Former § 38-129 was repealed. See Prior Compiler's Notes. 

Laws, § 38-101. The name of the state forester has been 

_ _ _ _ _ changed to director of the department of lands 

Federal References. on authority of S.L. 1974, ch. 286, § 1 and 

Portions of the Weeks law, referred to in S.L. 1974, ch. 17, § 3 (§ 38-101(g)). 

this section, are compiled as 16 USCS §§ 513 The words enclosed in parentheses so ap- 

to 519, 521, 552, 563. Portions of the Clarke- peared in the law as enacted. 

38-130. Disposition of fines. — Notwithstanding the provisions of 
section 19-4705, Idaho Code, fines collected for violations of this chapter or 
any provisions thereof shall be apportioned as follows: ten per cent (10%) to 
the state treasurer for deposit in the state general fund, fifty per cent (50%) 
to the current expense fund of the county in which the violation occurred 
and forty per cent (40%) to the state treasurer for deposit in the forest 
protection fund. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. 

Forest protection fund, § 38-129. 

Prior Laws. 

Former § 38-130 was repealed. See Prior 
Laws, § 38-101. 

38-131. Deficiency warrants for excess costs of fire suppression. 

— In event the actual cost for the control or suppression of forest fires in any 
forest protective district exceeds in any one (1) year the maximum moneys 
available for forest protection in that district from the forest protection fund 
or any other special or general fund provided for that purpose, the state 
board of land commissioners may authorize the issuance of deficiency 
warrants for the purpose of defraying such excess costs and when so 
authorized the state controller shall draw deficiency warrants against the 
general fund. 

History. § 4, p. 90; am. 1994, ch. 180, § 65, p. 420; am. 

1972, ch. 401, § 2, p. 1164; am. 1976, ch. 42, 2003, ch. 32, § 18, p. 115. 

STATUTORY NOTES 

Cross References. Effective Dates. 

Forest protection fund, § 38-129. Section 42 of S.L. 1976, ch. 42 provided this 



State board of land commissioners, Idaho 



section should be in full force and effect on 
and after July 1, 1976. 

Const., Art. DC, § 7 and § 58-101 et seq. Section 241 of S.L. 1994, ch. 180 provided 

State controller, § 67-1001 et seq. that such act should become effective on and 

after the first Monday in January, 1995 [Jan- 
Prior Laws. uary 2, 1995] if the amendment to the Con- 
Former § 38-131 was repealed. See Prior stitution of Idaho changing the names of the 
Laws, § 38-101. state auditor to state controller [1994 S.J.R. 



29 FORESTRY ACT 38-133 

No. 109, p. 1493] was adopted at the general this section by § 65 of S.L. 1994, ch. 180 
election held on November 8, 1994. Since such became effective January 2, 1995. 
amendment was adopted, the amendment to 

38-131 A. Deficiency warrants for costs of fire suppression on 
state-owned range lands. — The state board of land commissioners may 
authorize the issuance of deficiency warrants for the purpose of paying the 
costs of fire suppression on state-owned range lands whether or not said 
lands are adjacent to or intermingled with forest lands. When so authorized, 
the state controller shall draw deficiency warrants against the general fund. 

History. § 2, p. 390; am. 1994, ch. 180, § 66, p. 420; 

I.C., § 38-131A, as added by 1988, ch. 208, am. 2003, ch. 32, § 19, p. 115. 

STATUTORY NOTES 

Cross References. uary 2, 1995] if the amendment to the Con- 
State board of land commissioners, Idaho stitution of Idaho changing the names of the 

Const., Art. IX, § 7 and § 58-101 et seq. state auditor to state controller [1994 S.J.R. 

State controller, § 67-1001 et seq. No m p 1493] wag adopted at ^ geneml 

Effective Dates. election held on November 8, 1994. Since such 

Section 241 of S.L. 1994, ch. 180 provided amendment was adopted, the amendment to 

that such act should become effective on and this section by § 66 of S.L. 1994, ch. 180 

after the first Monday in January, 1995 [Jan- became effective January 2, 1995. 

38-132. Regulations of the board — Penalty for violation. — The 

state board of land commissioners may make such rules and regulations, not 
inconsistent with this chapter, as may be reasonable and necessary or 
appropriate for carrying out the provisions of this chapter and for efficient 
administration thereof. Any person violating any rule or regulation of the 
board, after written notice of the regulation has been furnished, shall be 
deemed guilty of the same crime as provided in the section of this chapter to 
which the rule or regulation pertains or if none be specified, then such 
violation shall be deemed a petty misdemeanor. 

History. 

1972, ch. 401, § 2, p. 1164. 

STATUTORY NOTES 

Cross References. Prior Laws. 

Penalty for misdemeanor when not other- Former § 38-132 was repealed. See Prior 

wise provided, § 18-113. Laws, § 38-101. 

State board of land commissioners, Idaho 
Const., Art. IX, § 7 and § 58-101 et seq. 

38-133. Officers charged with enforcement. — The director of the 
department of lands and his assistants, fire wardens, conservation officers 
and their deputies and all other peace officers of the state are hereby 
charged with the enforcement of the criminal provisions of this chapter and 
shall have full power and it shall be their duty to arrest with or without 
warrant any person found violating any of the provisions of this chapter or 
rules and regulations of the state board of land commissioners after notice 
made pursuant hereto and take him before a magistrate and make com- 



38-134 FORESTRY 30 

plaint, and when any such officer shall have information that such violation 
has been committed he shall make similar complaint. 

The authority of the fire wardens respecting the control or suppression of 
forest fires, summoning help or making arrests for violation of this chapter 
or rules and regulations of the board may extend to any adjacent district or 
to any part of the state in times of great fire danger, providing that in case 
of conflict of authority resulting therefrom, the fire warden in whose district 
the fire is located shall have ultimate control. In emergencies fire wardens 
may commandeer tools, supplies and equipment and may employ able- 
bodied persons or compel assistance of able-bodied persons and neither the 
state board of land commissioners, the director, or his delegates, fire 
wardens or deputy fire wardens, shall be liable to civil action for trespass 
committed in the discharge of their duties; provided, that in performing 
their duties they exercise reasonable care to avoid doing unnecessary 
damage. 

History. 

1972, ch. 401, § 2, p. 1164; am. 1974, ch. 17, 
§ 8, p. 308. 

STATUTORY NOTES 

Cross References. severable and if any provision of this act or 

Director of department of lands, § 58-105. the application of such provision to any per- 

BW EMS* '}' stlOl.- s ° n OT circumstance is declared invalid for 

State board of land commissioners, Idaho an Y reason, such declaration shall not affect 

Const., Art. IX, § 7 and § 58-101 et seq. the validity of remaining portions of this act." 

Prior Laws. Effective Dates. 

Former § 38-133 was repealed. See Prior Section 5 of S.L. 1972, ch. 401 provided this 

Laws, § 38-101. act shall take effect on and after July 1? 1973 

Compiler's Notes. Section 75 of S.L. 1974, ch. 17 provided the 

Section 3 of S.L. 1972, ch. 401 read "The act should be in full force and effect on and 
provisions of this act are hereby declared to be after July 1, 1974. 

RESEARCH REFERENCES 

C.J.S. — 98 C.J.S., Woods and Forests, 
§§ 7, 9. 

38-134. Forest practices act administration — Funding. — The 

director of the department of lands is charged in section 38-1305, Idaho 
Code, to administer and enforce the forest practices act on all private forest 
lands within the state. Funding for this activity shall come from an annual 
budget request from the general fund and from an annual assessment to be 
paid by every private owner of forest land in the state. The assessment for 
private owners of forest lands whose total acres of forest lands are twenty- 
five (25) acres or fewer shall be equal to the per acre cost multiplied by 
twenty-five (25). For private owners of forest lands whose total acres of 
forest lands are twenty-six (26) acres or more, the assessment shall be 
determined by the state board of land commissioners not to exceed ten cents 
(100) an acre per year. The assessment shall be collected in the same fashion 



31 FORESTRY ACT 38-136 

and at the same time as the forest protection assessment described in 
section 38-111, Idaho Code. 

History. § 4, p. 390; am. 2003, ch. 78, § 1, p. 252; am. 

I.C., § 38-134, as added by 1987, ch. 192, 2005, ch. 176, § 1, p. 547. 

STATUTORY NOTES 

Cross References. 1925, ch. 150, § 32, p. 265; I.C.A., 37-135; am. 

Director of department of lands, § 58-105. 1969, ch. 149, § 1, p. 474; am. 1969, ch. 304, 

Forest practices act, § 38-1301 and notes § 1, p. 910, was repealed by S.L. 1972, ch. 

thereto. 401, § 4. 
State board of land commissioners, Idaho Another former § 38-134 was repealed. See 

Const., Art. IX, § 7 and § 58-101 et seq. Prior Laws, § 38-101. 

Prior Laws. 

Former § 38-134, which comprised S.L. 

38-135. Forest practices administration account. — There is 
hereby created in the dedicated fund of the state treasury a forest practices 
administration account into which shall be paid the assessment on private 
owners of forest lands as provided in section 38-134, Idaho Code. 

History. 

I.C., § 38-135, as added by 1987, ch. 250, 
§ 3, p. 390. 

STATUTORY NOTES 

Prior Laws. 1925, ch. 150, § 33, p. 265; I.C.A., § 37-136 

Former § 38-135, which comprised S.L. was repealed by S.L. 1967, ch. 315, § 11. 

38-136. Community forestry trust account. — (1) There is hereby 
created within the dedicated fund of the state treasury the community 
forestry trust account. 

(2) The account shall consist of the following: 

(a) Moneys as provided in section 63-3067B, Idaho Code; 

(b) Donations, gifts, and grants from any source; 

(c) Any other moneys which may hereinafter be provided by law; and 

(d) Interest earned by the account. 

(3) The director or designee of the department of lands may authorize 
disbursements of moneys from the account for projects related to community 
forestry 

(4) Not less than thirty-five percent (35%) of the funding for an approved 
project shall be provided by the entity sponsoring or proposing the project or 
program. Contributions such as materials, personnel, supplies, or services 
may be considered as all or part of the funding provided by the petitioning 
entity. 

History. 

I.C., § 38-136, as added by 1992, ch. 258, 
§ 3, p. 749. 



38-137 



FORESTRY 



32 



STATUTORY NOTES 

Cross References. ch. 150, § 34, p. 265, I.C.A., § 37-137; am. 

Director of department of lands, § 58-105. 1943, ch. 156, § 6, p. 314, was repealed by 

Prior Laws. S.L. 1967, ch. 315, § 11. 

Former § 38-136, which comprised 1925, 

38-137, 38-138. State forest lands — Application of chapter — 
Separability. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 138 and 37-139; am. 1943, ch. 156, § 6, p. 314, 

These sections, which comprised S.L. 1925, were repealed by S.L. 1972, ch. 401, § 4. 
ch. 150, §§ 35 and 36, p. 265; I.C.A., §§ 37- 

CHAPTER 2 
REFORESTATION LAW 

SECTION. 

38-201 — 38-223. [Repealed.] 

38-201 — 38-223. Reforestation law. [Repealed.] 

STATUTORY NOTES 



Compiler's Notes. 

The following sections were repealed by 
S.L. 1995, ch. 173, § 1, effective July 1, 1995 

§ 38-201 which comprised 1929, ch. 185 
§ 1, p. 329; I.C.A., § 37-201; am. 1972, ch 
237, § 1, p. 618. 

§ 38-202 which comprised 1929, ch. 185 
§ 2, p. 329; I.C.A., § 37-202. 

§ 38-203 which comprised 1929, ch. 185 
§ 3, p. 329; I.C.A., § 37-203. 

§ 38-204 which comprised 1929, ch. 185 
§ 4, p. 329; I.C.A., § 37-204; am. 1967, ch 
315, § 13, p. 906; am. 1972, ch. 237, § 2, p 
618. 

§ 38-205 which comprised 1929, ch. 185 
§ 5, p. 329; am. 1931, ch. 71, § 1, p. 124 
I.C.A., § 37-205; am. 1967, ch. 315, § 14, p 
906. 

§ 38-206 which comprised 1929, ch. 185 
§ 6, p. 329; am. 1931, ch. 71, § 2, p. 124 
I.C.A., § 37-206; am. 1967, ch. 315, § 15, p 
906; am. 1972, ch. 237, § 3, p. 618. 

§ 38-207 which comprised 1929, ch. 185 
§ 7, p. 329; I.C.A., § 37-207; am. 1967, ch 
315, § 16, p. 906; am. 1974, ch. 17, § 9, p 
308. 

§ 38-208 which comprised 1929, ch. 185 
§ 8, p. 329; I.C.A., § 37-208; am. 1967, ch 
315, § 17, p. 906. 

§ 38-209 which comprised 1929, ch. 185 
§ 9, p. 329; I.C.A., § 37-209; am. 1974, ch. 17 
§ 10, p. 308. 

§ 38-210 which comprised 1929, ch. 185 
§ 10, p. 329; I.C.A., § 37-210; am. 1967, ch 



315, § 18, p. 906; am. 1974, ch. 17, § 11, p. 
308; am. 1993, ch. 216, § 20, p. 587. 

§ 38-211 which comprised 1929, ch. 185, 
§ 11, p. 329; I.C.A, § 37-211. 

§ 38-212 which comprised 1929, ch. 185, 
§ 12, p. 329; I.C.A., § 37-212; 1967, ch. 315, 
§ 19, p. 906. 

§ 38-213 which comprised 1929, ch. 185, 
§ 13, p. 329; I.C.A., § 37-213; am. 1967, ch. 
315, § 20, p. 906. 

§ 38-214 which comprised 1929, ch 
§ 14, p. 329; I.C.A., § 37-214. 

§ 38-215 which comprised 1929, ch 
§ 15, p. 329; I.C.A., § 37-215. 

§ 38-216 which comprised 1929, ch 
§ 16, p. 329; I.C.A., § 37-216. 

§ 38-217 which comprised 1929 
§ 17, p. 329; I.C.A., § 37-217; am. 
315, § 21, p. 906. 

§ 38-218 which comprised 1929 
§ 18, p. 329; I.C.A., § 37-218; am. 
315, § 22, p. 906. 

§ 38-219 which comprised 1929, ch. 185, 
§ 19, p. 329; I.C.A., § 37-219; 1967, ch. 315, 
§ 23, p. 906. 

§ 38-220 which comprised 1929, ch. 
§ 20, p. 329; I.C.A., § 37-220; 1967, ch 
§ 24, p. 906. 

§ 38-221 which comprised 1929, ch. 185, 
§ 21, p. 329; I.C.A., § 37-221. 

§ 38-222 which comprised 1929, ch. 185, 
§ 22, p. 329; I.C.A, § 37-222. 

§ 38-223 which comprised 1929, ch. 185, 
§ 23, p. 329; I.C.A, § 37-223. 



ch. 
1967 



185, 

185, 

185, 

185, 
ch. 



ch. 185, 
1967, ch. 



185, 
315, 



33 FIRE HAZARD REDUCTION PROGRAMS 38-401 

CHAPTER 3 
COOPERATIVE SUSTAINED YIELD DISTRICTS 

SECTION. 

38-301 — 38-312. [Repealed.] 

38-301 — 38-312. Cooperative sustained yield districts. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 140, §§ 1 to 12, p. 226; 1967, ch. 315, § 25, p. 

These sections, which comprised 1937, ch. 906, were repealed by S.L. 1987, ch. 64, § 1. 

CHAPTER 4 
FIRE HAZARD REDUCTION PROGRAMS 

SECTION. SECTION. 

38-401. Supervision by director of the depart- tracts with forest protective 

ment of lands. „„ ,«„ ^ agencies 

38-402. Plans, programs and rules - Ap- 38-406. Forest lands belonging to state, 

i u 4. 4. u a 38-407. Forest management account. 

oo „™ r, i ? roval , by State : oa \/ , 38-408. Moneys from contracts and appropri- 

38-403. Delegation of powers to state forest ations _ Expenditures and 

warden. accounts. 

38-404. Contracts with owners of forest 38-409. Bond of director. 

lands. 38-410. Certificate of clearance. 

38-405. Methods of reducing hazards — Con- 38-411. Separability. 

38-401. Supervision by director of the department of lands. — 

The director of the department of lands shall have the supervision, control 
and management of all fire hazards created by insects, disease, other 
natural causes, or by any person engaged in harvesting timber, ties, logs, 
poles, posts, cordwood, pulpwood, or any other forest product or potential 
forest product upon lands within the state of Idaho for the protection of 
forest resources, and shall have supervision, control and management of all 
fire hazard reduction plans, programs and regulations of or under the 
forestry laws of the state of Idaho. 

The supervision, control, management or reduction, or any combination 
thereof, of fire hazards referred to in this section and in this chapter may 
include or be limited to the taking of protective measures reasonably 
intended to prevent the injury to or the destruction of forest resources 
without the actual abatement of the hazard. It shall be the public policy of 
this state, without unnecessarily restricting the director of the department 
of lands, to reduce, wherever practical, fire hazards by disposal or treatment 
of the slash created by the harvesting of forest products, having due regard 
for the effective and economical overall protection of forest land and 
resources. 

In those cases where complete disposal or treatment of the slash is not 
planned or where partial disposal or treatment is planned the state forest 
warden shall submit to the director a detailed plan of protection for each 
separate operation listing the proposed expenditures and the amounts 
collected or to be collected. The director may approve such plan if the 
proposed expenditures are limited to one or more of the following: 



38-402 FORESTRY 34 

1. Acquisition of equipment needed for fire protection or reduction of fire 
hazards referred to in this section. 

2. Construction of appropriate structures aiding in fire protection or 
hazard reduction. 

3. Acquisition or contracting for communications or a communication 
system. 

4. Acquisition of appropriate tools, machinery and equipment needed for 
fire protection or hazard reduction. 

5. Payment of personnel and apportioned overhead employed by the 
forest protective district. 

6. Road maintenance and construction in slash areas where a fire hazard 
exists. 

The percentage of total moneys accredited to each forest protective district 
that may be used within the district for protective measures in lieu of actual 
abatement of the fire hazards shall be determined annually by the director. 

History. § 1, p. 357; am. 1969, ch. 89, § 1, p. 296; am. 

1945, ch. 74, § 1, p. 108; am. 1957, ch. 183, 1974, ch. 17, § 12, p. 308. 

STATUTORY NOTES 

Cross References. tion to conduct investigations and research 

Director of department of lands, § 58-105. into fire protection, § 38-706. 
Forest, wildlife and range experiment sta- 

RESEARCH REFERENCES 

C.J.S. — 98 C.J.S., Woods and Forests, 
§ 15. 

38-402. Plans, programs and rules — Approval by state boards. — 

The director of the department of lands is hereby authorized and empow- 
ered to adopt plans, programs and rules for the management and reduction 
of fire hazards for the protection of forest resources, any of which hazards 
are created by insects, disease, other natural causes, or by any person 
engaged in harvesting timber, ties, logs, poles, posts, cordwood, pulpwood, or 
any other forest product or potential forest product upon lands within the 
state of Idaho. 

All such plans, programs and rules for the supervision, management, 
control, and reduction of fire hazards for the protection of forest resources to 
be applied in any forest protective district before becoming effective shall be 
submitted to, and approved by the state board of land commissioners, and 
all contracts or agreements entered into by the director of the department of 
lands with any owner or owners, operator or operators of any forest lands 
covered by sections 38-401 — 38-410, Idaho Code, before becoming effective, 
shall be submitted to, and be approved by the state board of land commis- 
sioners. 

History. § 2, p. 357; am. 1969, ch. 89, § 2, p. 296; am. 

1945, ch. 74 § 2, p. 108; am. 1957, ch. 183, 1974, ch. 17, § 13, p. 308. 



35 FIRE HAZARD REDUCTION PROGRAMS 38-405 

STATUTORY NOTES 

Cross References. State board of land commissioners, Idaho 

Director of department of lands, § 58-105. Const., Art. IX, § 7 and § 58-101 et seq. 

RESEARCH REFERENCES 

C.J.S. — 98 C.J.S., Woods and Forests, 
§ 15. 

38-403. Delegation of powers to state forest warden. — The 

director of the department of lands is hereby authorized and empowered to 
delegate any power granted to the director under sections 38-401 — 38-410 [, 
Idaho Code,] to the state forest warden in any forest protective district. 

History. § 3, p. 357; am. 1969, ch. 89, § 3, p. 296; am. 

1945, ch. 74, § 3, p. 108; am. 1957, ch. 183, 1974, ch. 17, § 14, p. 308. 

STATUTORY NOTES 

Cross References. compiler to conform to the statutory citation 

Director of department of lands, § 58-105. style. 

Compiler's Notes. 

The bracketed insertion was added by the 

38-404. Contracts with owners of forest lands. — The director of the 
department of lands is hereby authorized and empowered to enter into 
agreements with the owners of any forest lands or any operator engaged in 
operations on lands within the state of Idaho whereby slash is created, and 
under said contract the director may assume all responsibility created 
under the forestry laws of the state of Idaho for the management, and 
reduction of any fire hazard for the protection of forest resources; any such 
contract shall provide the amount to be paid by the owner or operator to the 
director by reason of his agreement to assume this responsibility. 

History. § 4, p. 357; am. 1969, ch. 89, § 4, p. 296; am. 

1945, ch. 74, § 4, p. 108; am. 1957, ch. 183, 1974, ch. 17, § 15, p. 308. 

STATUTORY NOTES 

Cross References. Forest lands denned, § 38-101. 

Director of department of lands, § 58-105. Slash denned, § 38-101. 

JUDICIAL DECISIONS 

Cited in: Clearwater Timber Protective 
Ass'n v. District Court, 84 Idaho 129, 369 P.2d 
571 (1962). 

38-405. Methods of reducing hazards — Contracts with forest 
protective agencies. — The management and reduction of such fire 
hazards for the protection of forest resources shall be carried on by the 
director of the department of lands and the state forest wardens in keeping 



38-406 FORESTRY 36 

with modern and progressive forest practices in furtherance of reforestation 
and more effective fire control and in accordance with the plans approved by 
the state board of land commissioners for the several forest protective 
districts, and the director or state forest wardens are hereby authorized to 
enter into contracts with forest protective agencies, including agencies of the 
United States of America, for the management and reduction of such fire 
hazards for the protection of forest resources when in their opinion the work 
can best be accomplished in that manner. The director, state forest wardens 
and recognized forest protective agencies, including any agency of the 
United States of America, with which the director or state forest warden has 
entered into an agreement for the management and reduction of any fire 
hazard for the protection of forest resources as herein provided, and any 
officer or official of such agency, shall not be liable for any damage to the 
land, product, improvement or other things of value of whatsoever nature 
upon the lands on which the fire hazards are being managed or reduced in 
accordance with provisions of sections 38-401 to 38-410, Idaho Code, 
inclusive, when all requisite care and caution has been used and such work 
is being or has been performed in compliance with the plans, programs, 
rules and contracts approved as provided in section 38-402, Idaho Code. 

History. 1969, ch. 89, § 5, p. 296; am. 1974, ch. 17, 

1945, ch. 74, § 5, p. 108; am. 1953, ch. 219, § 16, p. 308. 
§ 1, p. 334; am. 1957, ch. 183, § 5, p. 357; am. 

STATUTORY NOTES 

Cross References. State board of land commissioners, Idaho 

Director of department of lands, § 58-105. Const., Art. IX, § 7 and § 58-101 et seq. 

JUDICIAL DECISIONS 

Cited in: Clearwater Timber Protective 
Ass'n v. District Court, 84 Idaho 129, 369 P.2d 
571 (1962). 

38-406. Forest lands belonging to state. — The provisions of sections 
38-401 — 38-410, Idaho Code, shall not apply to forest lands belonging to the 
state of Idaho. Provided, however, the state board of land commissioners 
may by order direct the director of the department of lands to apply the 
administration of all the provisions of this chapter to forest lands belonging 
to the state. 

History. 

1945, ch. 74, § 6, p. 108; am. 1969, ch. 89, 
§ 6, p. 296; am. 1974, ch. 17, § 17, p. 308. 

STATUTORY NOTES 

Cross References. State board of land commissioners, Idaho 

Director of department of lands, § 58-105. Const., Art. IX, § 7 and § 58-101 et seq. 

38-407. Forest management account. — The state treasurer shall be 



37 FIRE HAZARD REDUCTION PROGRAMS 38-408 

custodian of an account which is hereby created to be known as the "forest 
management account," into which shall be paid all funds accruing or 
received under any and all of the provisions of sections 38-401 — 38-410, 
Idaho Code. 

History. 

1945, ch. 74, § 7, p. 108; am. 1987, ch. 192, 
§ 5, p. 390. 

STATUTORY NOTES 

Cross References. 

State treasurer, Idaho Const. Art. IV, § 1. 
and § 67-1201 et seq. 

38-408. Moneys from contracts and appropriations — Expendi- 
tures and accounts. — All moneys paid to the director of the department 
of lands, or the state forest wardens, under any contract whereby the 
director assumes the management and reduction of any fire hazard for the 
protection of forest resources, shall be deposited with the state treasurer 
and shall be credited to the forest management fund [account] as herein 
provided. 

All moneys appropriated for, accruing to, or received by said fund 
[account] are hereby appropriated for the purpose specified in sections 
38-401 — 38-410, Idaho Code, and shall only be used in the protective 
districts where collected. All funds in, or accruing to, the erosion control 
account after the effective date of this section shall be credited to the forest 
practices rehabilitation account created in section 38-1313, Idaho Code. 

All moneys deposited in said fund [account] shall remain in the state 
treasury for the use of the director in the payment of items constituting 
claims against the fund [account]. This fund [account] may be drawn upon 
by sight drafts signed by the director and attached to vouchers for the 
planned expenditure, both in such form as the state controller shall 
prescribe. At such time as the board of examiners may prescribe the director 
shall present a complete itemized account of all expenditures from said fund 
[account]. The said board is authorized to approve or reject any item in said 
account. If any item thereof is disallowed the director or the state forest 
warden responsible therefor shall replace the amount thereof in the said 
fund [account]. The amount of the items allowed shall be credited by the 
state controller to the director. 

History. 1973, ch. Ill, § 1, p. 201; am. 1974, ch. 17, 

1945, ch. 74, § 8, p. 108; am. 1957, ch. 183, § 18, p. 308; am. 1987, ch. 192, § 6, p. 390; 
§ 6, p. 357; am. 1969, ch. 89, § 7, p. 296; am. am. 1994, ch. 180, § 67, p. 420. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The bracketed insertions throughout this 

State board of examiners, § 67-2001 et seq. section were added by the compiler to supply 

State controller, § 67-1001 et seq. the correct name of the referenced account. 

State treasurer, Idaho Const., Art. IV, § 1 See § 38-407. 

and § 67-1201 et seq. The phrase "the effective date of this sec- 



38-409 FORESTRY 38 

tion" in the second paragraph refers to the stitution of Idaho changing the names of the 

effective date of S.L. 1987, ch. 192, which was state auditor to state controller [1994 S.J.R. 

July 1, 1987. No. 109, p. 1493] was adopted at the general 

Effective Dates. election held on November 8, 1994. Since such 

Section 241 of S.L. 1994, ch. 180 provided amendment was adopted, the amendment to 

that such act should become effective on and this section by § 67 of S.L. 1994, ch. 180 

after the first Monday in January, 1995 [Jan- became effective January 2, 1995. 
uary 2, 1995] if the amendment to the Con- 

38-409. Bond of director. — The director of the department of lands 
shall be bonded to the state of Idaho in the time, form and manner 
prescribed by chapter 8, title 59, Idaho Code. 

History. 1971, ch. 136, § 23, p. 522; am. 1974, ch. 17, 

1945, ch. 74, § 9, p. 108; am. 1957, ch. 183, § 19, p. 308. 
§ 7, p. 357; am. 1969, ch. 89, § 8, p. 296; am. 

STATUTORY NOTES 

Cross References. act should be in full force and effect on and 

Director of department of lands, § 58-105. after July 1, 1974. 

Effective Dates. 

Section 75 of S.L. 1974, ch. 17 provided the 

38-410. Certificate of clearance. — Any owner or operator who has 
entered into a contract with the director of the department of state lands for 
the management and reduction of any fire hazard for the protection of forest 
resources and upon payment of the contract price in accordance with the 
terms of said contract and with the full compliance with the terms of said 
contract by such owner or operator shall be granted a certificate of clearance 
and be relieved of any and all further liability and responsibility for the 
removal or reduction of any such fire hazard. 

History. 

1945, ch. 74, § 10, p. 108; am. 1957, ch. 183, 
§ 8, p. 357; am. 1969, ch. 89, § 9, p. 296. 

STATUTORY NOTES 

Cross References. state lands" were substituted for "state land 

Director of department of lands, § 58-105. commissioner" on authority of S.L. 1974, ch. 

n ., , tvt + 286, § 1 and S.L. 1974, ch. 17, § 40 (§ 58- 

Compiler's Notes. *qA 

The words "director of the department of 

38-411. Separability. — The provisions of this chapter are hereby 
declared to be separable, and, if any part hereof is declared to be unconsti- 
tutional, such shall not affect the validity of the other portions of this 
chapter. 

History. 

I.C., § 38-411, as added by 1957, ch. 183, 
§ 9, p. 357. 



39 SEEDING OF BURNED AREAS 38-502 

CHAPTER 5 
SEEDING OF BURNED AREAS 

SECTION. SECTION. 

38-501. Statement of policy. Appointment — Duties — 

38-502. State to control erosion by seeding of nn _ „ Compensation and expenses. 

38-508. Burn seeding fund — Deficiency war- 



2?"^ ^^^ , ... 38-509. Repayn^enUo the fund — Tax levy - 

38-504. County boards to cooperate with Assessments and payments 

other agencies. for seed or services. 

38-505. Creation of burn seeding areas. 38-510. Disbursements. 

38-506. Abatement of costs as tax. 38-511. County commissioners may pay part 
38-507. County burn seeding supervisor — of cost of seeding. 

38-501. Statement of policy. — In more heavily timbered areas of the 
state, on lands owned by the federal government, state of Idaho, the 
counties, individuals, and on land in transit to counties through tax 
delinquency, devastating forest fires annually denude considerable areas of 
vegetation and subject such lands to erosion with total loss of top soils; 
permit an infestation of weeds which imperil adjacent agricultural lands, 
destroy feed and cover for wild life, and create great distress in agriculture 
through loss of grazing. Therefore, the seeding of such burned areas to 
suitable range grasses and/or legumes as soon as possible after the cessation 
of such fires is declared to be a matter of public welfare to the state. 

History. 

1941, ch. 71, § 1, p. 135. 

STATUTORY NOTES 

Cross References. Seed and nursery stock for special 

Forest, wildlife and range experiment sta- plantings, forest wildlife and range experi- 
tion to conduct investigations and research ment station to investigate possibilities and 
into problems of management of forest or wild experiment with, § 38-708. 
land, § 38-706; to investigate continuous use 
of forage and range resources on wild or forest 
lands, § 38-710. 

38-502. State to control erosion by seeding of grasses. — It shall be 
the duty of the state of Idaho through any legally constituted bureau, 
division or department thereof having control of any burned over lands, to 
control erosion thereon, to provide feed and cover for wild life and range for 
livestock, by providing for seeding grasses and/or legumes. Whenever 
possible such work shall be done in cooperation with the counties and the 
federal government, or any agency thereof. It shall be the duty of any officer 
having charge of any bureau, division or department of the state of Idaho, 
having under his jurisdiction, lands which may hereafter be burned over, to 
request the state legislature to provide funds for the seeding of such areas 
if he has no funds at his disposal which may be used for this purpose. 

History. 

1941, ch. 71, § 2, p. 135. 



38-503 FORESTRY 40 

38-503. Federal aid. — The state of Idaho is hereby authorized to 
cooperate with the federal government, or any established agency thereof, in 
any program for seeding burned over areas which shall be deemed advis- 
able, and any bureau, division or department of the state, and also any of the 
individual counties are empowered to accept any advisable program and to 
make any necessary regulations which are not in contradiction to the 
purpose of sections 38-501 — 38-511 [, Idaho Code]. The treasurer of the 
state of Idaho is hereby directed and authorized to accept any funds or 
grants in aid from the federal government for the purposes declared in 
sections 38-501 — 38-5 11 [, Idaho Code]. Expenditures of such funds shall be 
in manner provided by law, and in conformance with the provisions of 
federal requirements. 

History. 

1941, ch. 71, § 3, p. 135. 

STATUTORY NOTES 

Cross References. first and second sentences were added by the 

State treasurer, Idaho Const., Art. IV, § 1 compiler to conform to the statutory citation 
and § 67-1201 et seq. style. 

Compiler's Notes. 

The bracketed insertions at the end of the 

38-504. County boards to cooperate with other agencies. — It 

shall be the duty of the various boards of county commissioners of counties 
to direct seeding of burned over areas and to prescribe methods by which 
such seeding shall be done. In doing so such boards are hereby authorized to 
cooperate with other governmental units and with local, state and federal 
agencies and also with individual land owners. 

History. 

1941, ch. 71, § 4, p. 135. 

38-505. Creation of burn seeding areas. — The boards of county 
commissioners of the various counties are hereby authorized to create areas 
that may hereafter be burned over within their respective counties, into 
"Burn Seeding Areas/' and such boards may purchase, or authorize the 
purchase of seed to seed a part or all of such areas. The county boards are 
also authorized to enter into contracts with other state agencies or with 
federal agencies to seed land under the jurisdiction of such agencies within 
such "Burn Seeding Areas." 

Whenever the Board of County Commissioners of any county deems it 
necessary or desirable to create a "Burn Seeding Area," it must by resolution 
adopted by a majority of the members of said Board, setting forth in such 
resolution that such said Burning [Burn] Seeding Area is necessary within 
the county, and describing all of the lands included in said area, and fixing 
a time of hearing. The Clerk of the Board must publish said resolution and 
a notice requiring all interested persons to appear at a time and place before 
said Board, as designated in said resolution, and show cause if any they 
have why said Burn Seeding Area should not be created. Said notice must be 



41 SEEDING OF BURNED AREAS 38-507 

published in one (1) issue of a weekly newspaper published in the County. If 
no newspaper is published in the county, then in such paper as the Board 
may direct in its resolution. Said resolution and said notice shall provide a 
date of hearing, which shall be not less than ten days from the date of 
publication. Upon said hearing, after fully considering said matter, if the 
Board finds that the creation of said Burn Seeding Area is desirable and 
necessary, it shall make an order in writing to that effect, and file the same 
with the Clerk of the District Court in and for said County. Anyone 
interested may appeal to the District Court under the procedure set forth by 
Sections 31-1510, 31-1511, 31-1512[, Idaho Code]. 

History. 

1941, ch. 71, § 5, p. 135. 

STATUTORY NOTES 

Compiler's Notes. adopt a resolution setting forth that such 

The bracketed insertion in the first sen- burn seeding area is necessary . . ." 

tence in the second paragraph was added by Since enactment of this section, former ver- 

the compiler to correct the naming convention sions of sections 31-1510, 31-1511 and 31- 

for the referenced areas. 1512, referred to at the end of the section, 

The first sentence in the second paragraph were repealed and later replaced with unre- 

is somewhat confusing. It is believed that, lated subject matter. 

following the word "Area" where it first oc- The bracketed insertion at the end of the 

curs, the sentence should read as follows: "a section was added by the compiler to conform 

majority of the members of said board must to the statutory citation style. 

38-506. Abatement of costs as tax. — Whenever the county board has, 
pursuant to the provisions contained in sections 38-501 — 38-511 [, Idaho 
Code], seeded any area, such board shall prorate the costs and assess the 
same against the land so seeded. Any state agencies, departments or 
bureaus having under their jurisdiction land within such areas belonging to 
the state are hereby authorized and directed to pay the respective assess- 
ment against the land under their jurisdiction. Any assessments against 
land within such areas and any sums due the county for seed furnished to 
seed burned over land owned by private individuals shall be assessed 
against such land and entered on the current tax list of the owner thereof, 
and the charge shall be collected at the same time and in the same manner 
as general taxes and the lien thereof shall be a charge of equal priority with 
general taxes. 

History. 

1941, ch. 71, § 6, p. 135. 

STATUTORY NOTES 

Compiler's Notes. tence was added by the compiler to conform to 

The bracketed insertion in the first sen- the statutory citation style. 

38-507. County burn seeding supervisor — Appointment — Du- 
ties — Compensation and expenses. — The boards of county commis- 
sioners are hereby authorized to appoint or hire a county burn seeding 
supervisor whose duties shall be as follows: 



38-508 FORESTRY 42 

(1) To advise the board of county commissioners of areas that should be 
seeded. 

(2) To cooperate with the owners of land in this seeding program. 

(3) To cooperate with the state and local agencies or agencies of the 
federal government with any program for seeding which may be operative 
within the county. 

(4) To present to the owners of land and to the board of county commis- 
sioners plans for seeding burned over areas. 

(5) To do any other things which the board of county commissioners may 
deem advisable under sections 38-501 — 38-5 11 [, Idaho Code]. 

Such county burn seeding supervisor may be paid his actual expenses 
incurred by him in the discharge of his duties and may receive compensation 
for his services in such amounts as may be fixed by the board of county 
commissioners, payable as a county expense out of the county current 
expense fund, but not to exceed $8.00 per day or $1,500.00 per annum. 

History. 

1941, ch. 71, § 7, p. 135. 

STATUTORY NOTES 

Compiler's Notes. was added by the compiler to conform to the 

The bracketed insertion in subsection (5) statutory citation style. 

38-508. Burn seeding fund — Deficiency warrants. — It shall be 
the duty of the board of county commissioners of any county in which a burn 
seeding program is undertaken to establish a fund to be known as the "Burn 
Seeding Fund" which shall be created out of the county current expense 
fund. It shall be created on the first Monday of February of each year. In any 
county in which emergency shall require immediate action in seeding of 
such burn seeding areas as may be established, the board of county 
commissioners having jurisdiction over such areas are empowered to pay 
such costs incurred in such seeding procedure by issuance of deficiency 
warrants, and shall provide for retirement of such warrants out of a burn 
seeding fund to be created as hereinabove provided. 

History. 

1941, ch. 71, § 8, p. 135. 

38-509. Repayment to the fund — Tax levy — Assessments and 
payments for seed or services. — Repayments to this fund may be made 
from the proceeds of a tax levy which may be made by the board of county 
commissioners which shall not exceed two hundredths percent (.02%) of the 
market value for assessment purposes on all taxable property in said county. 
This levy shall be of equal priority with general taxes and shall be collected 
at the same time and in the same manner as general taxes. Repayments to 
this fund may also be made from assessments for payments made for seed 
furnished and services performed in seeding. If payments for seed or 
services in seeding are not made in the form of cash but are collected in the 
part of the tax they shall be collected as provided in section 38-506, Idaho 



43 FOREST INSECTS, PESTS AND DISEASE 38-5 11 

Code, and the part assessed for burn seeding costs together with interest 
thereon at county warrant rates, shall be allocated to burn seeding fund. 

History. 

1941, ch. 71, § 9, p. 135; am. 1995, ch. 82, 
§ 15, p. 218. 

STATUTORY NOTES 

Cross References. 

Burn seeding fund, § 38-508. 

38-510. Disbursements. — Disbursements from this fund shall be 
made on order of county commissioners for the purpose of purchasing seed 
and for services rendered in seeding such burned areas, and any other 
incidental charges that may be necessary for the operation of sections 
38-501 — 38-511[, Idaho Code]. 

History. 

1941, ch. 71, § 10, p. 135. 

STATUTORY NOTES 

Compiler's Notes. section was added by the compiler to conform 

The bracketed insertion at the end of the to the statutory citation style. 

38-511. County commissioners may pay part of cost of seeding. — 

The board of county commissioners may at its option pay not to exceed 
one-half (1/2) of the cost of seeding land not owned by the county and may 
pay the entire cost of seeding county-owned land. The commissioners shall 
reimburse the current expense fund of the county for the amount of burn 
seeding fund from the proceeds of the levy provided for in section 38-509 [, 
Idaho Code]. 

History. 

1941, ch. 71, § 11, p. 135. 

STATUTORY NOTES 

Cross References. section was added by the compiler to conform 

Burn seeding fund, § 38-508. to the statutory citation style. 

Compiler's Notes. 

The bracketed insertion at the end of the 

CHAPTER 6 
FOREST INSECTS, PESTS AND DISEASE 

SECTION. SECTION. 

38-601. Statement of policy. tion with federal and other 

38-602. Determination of infested areas — agencies. 

Power of director of the de- 38-603. Director to adopt plans, programs 

partment of lands — Coopera- and rules for the regulation, 



38-601 FORESTRY 44 

SECTION. SECTION. 

management and control of 38-606. Forest pest account. 

forest pests. 38-607. Approval of use of the forest pest 
38-604. Funding for insect and disease pro- account. 

gram. 38-608. State not liable for damages. 
38-605. Project cost for state-owned lands. 

38-601. Statement of policy. — It is hereby declared to be the public 
policy of the state of Idaho in order to protect and preserve forest resources 
from the ravages of the Tussock moth, pine beetle and other destructive 
forests insects, pests and disease, to protect the watersheds of Idaho, to 
enhance the production of forests, to promote the stability of forest industry 
and to protect the recreational values of the forests, to independently and 
through cooperation with the federal government and private timber owners 
to adopt measures to control, suppress and eradicate outbreaks of the 
Tussock moth, pine beetle or other destructive forest insects, pests and 
disease. 

This act is declared to be an emergency measure necessary for the 
preservation of public health and safety, for the preservation of forest 
resources, for the preservation of the watersheds and for the preservation of 
recreational values of the forest lands of this state. 

History. 

1947, ch. 139, § 1, p. 335; am. 1987, ch. 192, 
§ 7, p. 390. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Forest, wildlife and range experiment sta- The term "this act" in the second paragraph 

tion to conduct research into protection refers to S.L. 1947, ch. 139, which is codified 

against disease and insects, § 38-706. as §§ 38-601, 38-602, and 38-608. 

RESEARCH REFERENCES 

C.J.S. — 3 C. J. S., Agriculture, § 98 et seq. 

38-602. Determination of infested areas — Power of director of 
the department of lands — Cooperation with federal and other 
agencies. — Whenever the director of the department of lands determines 
that there exists the threat of an infestation of Tussock moth, pine beetle, or 
other destructive forest insects, pests or disease injurious to the timber or 
forest growth on forest lands and that said infestation is of such a character 
as to be a menace to the timber or forest growth of this state, the director of 
the department of lands may, with the approval of the state board of land 
commissioners, declare the existence of a zone of infestation, and may 
declare and fix the boundaries so as to definitely describe and identify the 
zone of infestation. 

Thereupon, the director of the department of lands or his agent shall have 
the power to go upon the land within said zone of infestation and shall cause 
the insect, infestation or disease to be suppressed, eradicated and destroyed 
in the manner approved by the state board of land commissioners and in 
order to accomplish the purposes of this chapter the director of the 



45 FOREST INSECTS, PESTS AND DISEASE 38-605 

department of lands may enter into cooperative agreement with the federal 
government and other public or private agencies and with timber land 
owners using such funds as have been or may hereafter be made available 
for such purposes; provided, that whenever the cost of suppression and 
eradication of forest insects, pests or diseases on forest lands exceeds the 
funds appropriated or otherwise available for that purpose, the state board 
of land commissioners may authorize the issuance of deficiency warrants 
against the general account for up to two hundred fifty thousand dollars 
($250,000) in any one (1) year for such suppression or eradication. 

History. 

1947, ch. 139, § 2, p. 335; am. 1987, ch. 192, 
§ 8, p. 390; am. 1988, ch. 244, § 1, p. 478. 

STATUTORY NOTES 

Cross References. State board of land commissioners, Idaho 

Director of department of lands, § 58-105. Const., Art. K, § 7 and § 58-101 et seq. 

38-603. Director to adopt plans, programs and rules for the 
regulation, management and control of forest pests. — The director of 
the department of lands shall develop plans, programs and rules for the 
regulation, management and control of forest insects, diseases, or other 
pests. These programs, plans and rules shall include, but are not limited to, 
the areas of prevention, detection, evaluation and control of such pests. 

History. 

I.C., § 38-603, as added by 1987, ch. 192, 
§ 9, p. 390. 

STATUTORY NOTES 

Cross References. ignated as § 38-608 by § 10 of S.L. 1987, ch. 

Director of department of lands, § 58-105. 192. 

Compiler's Notes. 

Former § 38-603 was amended and redes- 

38-604. Funding for insect and disease program. — The insect and 
disease program as described in chapter 6, title 38, Idaho Code, shall be 
incorporated into the forest protection program and shall be funded by 
moneys from the general account. Funding for special pest control projects 
may include an appropriation from the general account, contributions from 
cooperating landowners who have lands included in the project area, as 
denned in section 38-602, Idaho Code, or any combination of sources. 

History. 

I.C., § 38-604, as added by 1987, ch. 192, 
§ 9, p. 390. 

38-605. Project cost for state-owned lands. — The state's share of 
the costs for special pest control projects for state-owned lands within the 
project area as described in section 38-602, Idaho code [Code], shall be 



38-606 FORESTRY 46 

funded by moneys in the forest pest account, and moneys from the state 
general account. 

History. 

I.C., § 38-605, as added by 1987, ch. 192, 
§ 9, p. 390. 

STATUTORY NOTES 

Compiler's Notes. the compiler to conform to the statutory cita- 

The bracketed word "Code" was inserted by tion style. 

38-606. Forest pest account. — There is hereby created in the 
dedicated fund of the state treasury a forest pest account into which shall be 
paid all moneys collected or received under any and all provisions of this 
chapter. 

History. 

I.C., § 38-606, as added by 1987, ch. 192, 
§ 9, p. 390. 

38-607. Approval of use of the forest pest account. — All special 
pest control projects and expenditure of funds in the forest pest account 
shall be approved by the state board of land commissioners. 

History. 

I.C., § 38-607, as added by 1987, ch. 192, 
§ 9, p. 390. 

STATUTORY NOTES 

Cross References. 

State board of land commissioners, Idaho 
Const., Art. IX, § 7 and § 58-101 et seq. 

38-608. State not liable for damages. — The state of Idaho or the 
director of the department of lands or his agent shall not be liable for any 
damage to bees, livestock, or other property or resource injured in the 
process of treating the infested area under the provisions of sections 38-601 
— 38-608, Idaho Code. 

History. 

1947, ch. 139, § 3, p. 335; am. and redesig. 
1987, ch. 192, § 10, p. 390. 

STATUTORY NOTES 

Cross References. 603 and was amended and redesignated as 

Director of department of lands, § 58-105. § 38-608 by § 10 of S.L. 1987, ch. 192. 

Compiler's Notes. 

This section was formerly compiled as § 38- 



47 FOREST, WILDLIFE AND RANGE EXPERIMENT STATION 38-702 

CHAPTER 7 

FOREST, WILDLIFE AND RANGE EXPERIMENT 

STATION 

SECTION. SECTION. 

38-701. Experiment station created. 38-709. Game and other wildlife — Investi- 

38-702. Director — Control — Assistants and gation and research. 

nn „«„ ^ .. eD £Pl°y ee . s - a 38-710. Forage and range resources upon 

o2 "™ ? U i!f S ° f e3 ^ eni J ient K s ^ on - A wild and forest lands - Inves- 

38-704. Field experiment substations — Ac- , . , . , , 

ceptance of land or other dona- M ^ Q tigataon and research. 

tions. 38-711. Recommendations to administrative 
38-705. Reports to state board of regents. agencies — Publishing of in- 

38-706. Forest and timber growing problems formation. 

— Investigation and research. 38-712. Information, correspondence and 
38-707. Timber products — Marketing prob- data — Dut y to guard. 

lems — Investigation and re- 38-713. Separability. 

search. 38-714. Creation of forest policy analysis 
38-708. Seeds and nursery stock for special gr^P — Powers and duties. 

plantings — Investigation and 

experimentation. 

38-701. Experiment station created. — There hereby is created and 
established in the State University of Idaho, School of Forestry [college of 
natural resources], an experiment station to be known as the Forest, 
Wildlife and Range Experiment Station of the State of Idaho. 

History. 

1939, ch. 259, § 1, p. 643. 

STATUTORY NOTES 

Compiler's Notes. relevant department of the University of 

The bracketed insertion was added by the Idaho, 
compiler to reflect the current name of the 

RESEARCH REFERENCES 

C.J.S. — 3 C.J.S., Agriculture, § 19. 

38-702. Director — Control — Assistants and employees. — The 

dean of the School of Forestry [college of natural resources] of the University 
of Idaho shall be the director of the forest, wildlife and range experiment 
station of the state of Idaho. The said experiment station shall be under the 
control of the state board of regents of the University of Idaho who shall 
have the power and whose duty it shall be to appoint or designate such 
assistants and employees as may be necessary, and to fix their compensa- 
tion. 

History. 

1939, ch. 259, § 2, p. 643. 



38-703 FORESTRY 48 

STATUTORY NOTES 

Cross References. compiler to reflect the current name of the 

Board of regents, § 33-2802. relevant department of the University of 

Compiler's Notes. Idaho. 
The bracketed insertion was added by the 

38-703. Duties of experiment station. — It shall be the duty of the 
forest, wildlife and range experiment station of the state of Idaho to 
institute and conduct investigations and research into the forestry, wildlife 
and range problems of the forest lands of the state; to conduct cooperative 
investigation and research with the board of land commissioners, the state 
fish and game commission, the Idaho department of agriculture, other 
schools and colleges of the University of Idaho, and with other departments 
and branches of the state government when mutually beneficial; with forest 
protective associations and with private individuals and agencies; with farm 
bureaus of the state and with the county agents; and to cooperate in 
investigation and research with the United States government and its 
branches, as a land grant institution, or otherwise, in accordance with their 
regulations. 

History. 

1939, ch. 259, § 3, p. 643; am. 1974, ch. 18, 
§ 225, p. 364. 

STATUTORY NOTES 

Cross References. Effective Dates. 

Department of agriculture, § 22-101 et seq. Section 263 of S.L. 1974, ch. 18 provided the 

Fish and game commission, § 36-102. act should be in full force and effect on and 

State board of land commissioners, Idaho after July 1, 1974. 
Const., Art. K, § 7 and § 58-101 et seq. 

38-704. Field experiment substations — Acceptance of land or 
other donations. — The forest, wildlife and range experiment station of 
the state of Idaho is authorized to establish such field experiment substa- 
tions as in the judgment of the state board of regents may be necessary. The 
state board of regents is hereby authorized to accept, for and in behalf of the 
state of Idaho, such gifts of land or other donations as may be made to the 
state for the purposes of sections 38-701 — 38-713[, Idaho Code]. 

History. 

1939, ch. 259, § 4, p. 643. 

STATUTORY NOTES 

Cross References. section was added by the compiler to conform 

Board of regents, §§ 33-2802. to the statutory citation style. 

Compiler's Notes. 
The bracketed insertion at the end of the 

38-705. Reports to state board of regents. — The state board of 



49 FOREST, WILDLIFE AND RANGE EXPERIMENT STATION 38-708 

regents may require from said experiment station, such regular and special 
reports to be prepared and submitted as it deems necessary. 

History. 

1939, ch. 259, § 5, p. 643. 

STATUTORY NOTES 

Cross References. 

Board of regents, § 33-2802. 

38-706. Forest and timber growing problems — Investigation 
and research. — Within the state of Idaho, the forest, wildlife and range 
experiment station is authorized to investigate and conduct research into 
the various problems incident to the production of timber either by natural 
or artificial means, its protection against fire, disease and insects, or any 
other influences tending to kill or destroy mature or immature forest trees, 
and the problems of management of forest or wild land to the end that the 
state and its citizens may derive the greatest benefits both economic and 
social that flow from such production, protection and management. 

History. 

1939, ch. 259, § 6, p. 643. 

STATUTORY NOTES 

Cross References. nation of infested areas, eradication and de- 
Fire hazard reduction programs under su- struction, § 38-601 et seq. 

pervision of director of department of lands, Forest lands denned, § 38-101. 

§ 38-401 et seq. Forest practices act, § 38-1301 et seq. 

Forest insects, pests and diseases, determi- Seeding of burned areas, § 38-501 et seq. 

38-707. Timber products — Marketing problems — Investigation 
and research. — Investigation of and research into the problems connected 
with the conversion of forests into marketable products and the utilization 
of wood material to the highest economic advantage together with the 
reduction of waste through research into new uses of such waste materials 
customarily resulting from the conversion and manufacture of timber 
products shall be within the province of the authority of the forest, wildlife 
and range experiment station. 

History. 

1939, ch. 259, § 7, p. 643. 

38-708. Seeds and nursery stock for special plantings — Investi- 
gation and experimentation. — The forest, wildlife and range experi- 
ment station is authorized to investigate possibilities and experiment with 
seeds, nursery stock and otherwise, independently and through cooperation 
with the agricultural experiment station, the various county agents of the 
state of Idaho, the federal government by means of the Clarke-McNary 
Nursery, and with private land owners, in the experimental production of 
suitable planting stock with the specific purposes in mind of developing 



38-709 FORESTRY 50 

suitable tree species for farm wood production, for protection of farmstead 
buildings, and general windbreak and shelterbelt plantings, and for dry 
land plantings. 

History. 

1939, ch. 259, § 8, p. 643. 

STATUTORY NOTES 

Cross References. 

Seed and plant certification by agricultural 
experiment station, §§ 22-1504 and 22-1505. 

38-709. Game and other wildlife — Investigation and research. — 

It shall be within the purpose of the forest, wildlife and range experiment 
station to investigate and conduct research into the propagation, protection, 
taking and productive management of game, fish, fur animals, birds and 
other wildlife in harmony with other major economic uses of land within the 
state of Idaho to the end that sportsmen, hunters and the general public, 
each in their own sphere, may be able to enjoy the presence of and the 
pursuit of game, fish and wildlife. 

History. 

1939, ch. 259, § 9, p. 643. 

RESEARCH REFERENCES 

Am. Jur. — 35 Am. Jur. 2d, Fish and Game, 
§ 25. 

38-710. Forage and range resources upon wild and forest lands 
— Investigation and research. — For the direct purpose of aiding in the 
management and perpetuation of forage resources so that such resources 
shall be of the highest use to the state in its support of agriculture, including 
the livestock industry of the state, and the general public, in their utiliza- 
tion of the forage resources found upon the wild and forest lands within the 
state of Idaho and without invading the fields of research and investigation 
designated as belonging to the work of the experiment station of the College 
of Agriculture [college of agriculture and life sciences] of the University of 
Idaho, the forest, wildlife and range experiment station is authorized to 
conduct investigations and research into the production, protection, utiliza- 
tion and management for continuous use of all forage and range resources 
found thereon, and the direct and indirect effects of the use of these 
resources upon erosion and watershed protection. 

History. 

1939, ch. 259, § 10, p. 643. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Forest lands denned, § 38-101. The bracketed insertion was added by the 



51 FOREST, WILDLIFE AND RANGE EXPERIMENT STATION 38-713 

compiler to reflect the current college names 
at the University of Idaho. 

38-711. Recommendations to administrative agencies — Publish- 
ing of information. — It shall be the duty of and within the purpose of the 
forest, wildlife and range experiment station to make recommendations 
based upon studies and determinations, to the appropriate administrative 
agencies, concerning the production, management and utilization of the 
various resources to which the information shall apply and from time to 
time to publish and to distribute such information as shall be of interest and 
value to the industries and activities affected. 

History. 

1939, ch. 259, § 11, p. 643. 

38-712. Information, correspondence and data — Duty to guard. 

— It shall be the duty of all officers and employees of the forest, wildlife and 
range experiment station, appointed or assigned, to guard carefully all 
confidential information accumulated in the progress of their work and such 
information shall be subject to disclosure according to chapter 3, title 9, 
Idaho Code; and to consider as property of the forest, wildlife and range 
experiment station all correspondence, notes, illustrations and data of any 
kind accumulated by them in the execution of the work of the experiment 
station delegated to them. 

History. 

1939, ch. 259, § 12, p. 643; am. 1990, ch. 
213, § 33, p. 480. 

STATUTORY NOTES 

Effective Dates. 110 of the act should take effect July 1, 1993 

Section 111 of S.L. 1990, ch. 213 as and that §§ 1, 2, 46 and 47 should take effect 

amended by § 16 of S.L. 1991, ch. 329 pro- j u i y i ? 1990. 
vided that §§3 through 45 and 48 through 

38-713. Separability. — If any provision of sections 38-701 — 38-7 13 [, 
Idaho Code,] or the application thereof to any person or circumstances is 
held invalid, such invalidity shall not affect other provisions or applications 
of the act which can be given effect without the invalid provision or 
application, and to this end the provisions of sections 38-701 — 38-7 13 [, 
Idaho Code,] are declared to be severable. 

History. 

1939, ch. 259, § 13, p. 643. 

STATUTORY NOTES 

Compiler's Notes. The bracketed insertions were added by the 

This bill became a law on March 15, 1939, compiler to conform to the statutory citation 
not having been signed by the governor, or style, 
filed, together with his objections, in the office 
of the secretary of state within ten days after 
the adjournment of the legislature. 



38-714 FORESTRY 52 

38-714. Creation of forest policy analysis group — Powers and 
duties. — (1) There is hereby created within the Idaho forest, wildlife and 
range experiment station a "forest, range and wildlife policy analysis 
group." The forest, range and wildlife policy analysis group shall be under 
the control of the dean of the college of forestry, wildlife and range sciences 
[college of natural resources] of the university of Idaho and shall have the 
following powers and duties: 

(a) A program of continuing inquiry into such public policy issues as may 
be suggested by the advisory committee described in this act; 

(b) The ability to provide timely, scientific and objective data and analysis 
pertinent to such resource and land use questions which are of general 
interest to the people of Idaho and which are suggested as worthy of the 
group's attention by the advisory committee described herein. Each report 
of the group shall include a range of actions which might be taken to 
resolve the issues addressed in the group's inquiries. In developing such 
alternatives, the director shall consult with a broad array of public 
agencies and other interests and shall show potential benefits and 
detrimental effects of each alternative, and; 

(c) Analytical and informational services provided on a contractual basis 
to those public entities desiring such services in order to better reach more 
informed decisions regarding the wise use of Idaho's forest, range and 
wildlife resources, including fish, wildlife, timber, water, outdoor recre- 
ation, forage and aesthetic values. Such contractual services may not be 
offered at rates less than the college's actual costs for providing them and 
must adhere to the highest professional and scientific standards for 
objective, scientific research. The results of such contractual services 
provided by this group shall be considered to be public knowledge 
available to the citizens of Idaho. 

(2) The dean of the college of forestry, wildlife and range sciences [college 
of natural resources], in a manner consistent with existing practice for 
hiring and electing faculty members to the college and its departments, 
shall as soon as practicable subsequent to the passage of this act, name a 
director of the forest policy analysis group. The director and staff shall have 
academic training and managerial skills appropriate to the college and the 
position and shall be compensated at a rate commensurate with their 
abilities and experience. The director and staff shall enjoy all protections of 
academic freedom and tenure that are consistent with general policies and 
practices of the college. Individual projects and analyses will be conducted 
by the group's staff or members of the college's faculty, or by scientists from 
other educational institutions or research entities as appropriate. 

(3) The dean of the college of forestry, wildlife and range sciences [college 
of natural resources] shall name a forest policy advisory committee repre- 
sentative of the entities, both public and private, which have demonstrated 
interest in the areas of inquiry and conclusions of the group. Members of 
this committee shall serve without pay and under such terms of service as 
may be prescribed by the dean. It shall be the responsibility of the 
committee to review various forest policy issues and suggest the priority, 
critical focus and appropriateness of these issues for consideration by the 
forest policy analysis group. The total size of this committee shall not exceed 



53 FLOATING TIMBER 38-802 

eleven (11) voting members. The dean shall also name a "technical advisory 
committee" consisting of faculty members and others with a demonstrated 
technical knowledge of issues or questions posed to the group to help provide 
guidance and expertise to each of the group's inquiries. 

(4) It shall be the duty of and within the purposes of the forest, wildlife 
and range experiment station to establish a forest policy analysis series in 
which to publish all results and findings, whether tentative or conclusive, 
regarding any and all of the group's studies. Such publication shall be made 
freely, without prejudice and in a manner consistent with the highest 
professional, scientific, and ethical standards. In carrying out the provisions 
of this section, the director and staff of the forest policy analysis group shall 
seek the counsel and expertise and generally cooperate with other colleges 
within the state's university system, plus other public or private research 
efforts. 

History. 

I.C., § 38-714, as added by 1989, ch. 206, 
§ 1, p. 506; am. 1994, ch. 194, § 1, p. 623. 

STATUTORY NOTES 

Compiler's Notes. Section 2 of S.L. 1989, ch. 206 provided that 

The term "this act" at the end of subdivision the act would become null and void on and 

(l)(a) refers to S.L. 1989, ch. 206, which is after July 1, 1994. However, S.L. 1989, ch. 

codified as this section. 206, § 2 was repealed by S.L. 1994, ch. 194, 

The bracketed insertions in this section § 2, and the act did not become null and void. 

were added by the compiler to reflect the 

current college name at the University of 

Idaho. 

CHAPTER 8 
FLOATING TIMBER 

SECTION. SECTION. 

38-801. Definition of timber. Abatement — Liability of 

38-802. Reclamation by owner. owner 

Qa~Qn5' fale b y sheriff. 38 . 808 Recording log brands - Penalty. 

38-804. Application of proceeds. OQQnfi r, . , a i *. uv Is 

38-805. Rejection of claimant's right - Dis- 38 " 809 - Pnze lo ^ s ~ Sale at P ublic auctlon - 

position of proceeds. 
38-806. Dams and booms — Limitation on 

construction. 
38-807. Booms and weirs as nuisances — 

38-801. Definition of timber. — The word "timber" is used in this 
chapter to designate all logs, boards, planks, lumber, railroad ties, poles, 
rails, posts, cordwood or beams, and whether in rafts or otherwise, but does 
not include the sort of wood commonly called driftwood. 

History. 

R.S., § 830; reen. R.C. & C.L., § 867; C.S., 
§ 1295; I.C.A., § 37-301. 

38-802. Reclamation by owner. — Whenever any timber drifts upon 



38-803 FORESTRY 54 

any island in any of the waters of this state, or upon the bank of any such 
waters, the owner of the timber may remove it on paying or tendering to the 
owner or occupant of the land the amount of damages which he has 
sustained by reason thereof, and which may accrue in its removal; and if the 
parties can not agree as to the amount of such damages, either party may 
have the same appraised by two (2) disinterested citizens of the county, who 
may hear the proofs and determine the same at the expense of the owner of 
the timber. 

History. 

1885, p. 177, § 1; R.S., § 831; reen. R.C. & 
C.L., § 868; C.S., § 1296; I.C.A., § 37-302. 

JUDICIAL DECISIONS 

Liability for Damages. property resulting from his negligence. Falk v. 

Person using stream to float timber may be Humbird Lumber Co., 36 Idaho 1, 208 P. 404 
held liable in damages for injury to abutting (1922). 

RESEARCH REFERENCES 

Am. Jur. — 52 Am. Jur. 2d, Logs and C.J.S. — 54 C.J. S., Logs and Logging, §§ 2, 

Timber, §§ 85, 86. 36, 37. 

38-803. Sale by sheriff. — If the owner of such timber does not, within 
three (3) months from the time it was so drifted, take the same away, the 
owner or occupant of the land must deliver a bill of his charges and 
appraisement of damages, together with the timber, to the sheriff of the 
county, and thereafter the sheriff must sell the same after three (3) days' 
notice posted in three (3) public places of the precinct. 

History. 

R.S., § 832; reen. R.C. & C.L., § 869; C.S., 
§ 1297; I.C.A., § 37-303. 

RESEARCH REFERENCES 

Am. Jur. — 52 Am. Jur. 2d, Logs and 
Timber, § 95 et seq. 

38-804. Application of proceeds. — When sold, the proceeds of the 
timber must be applied, first, to the payment of the charges of the sale, and 
in liquidation of the expenses and damages awarded to the person entitled 
thereto; and the residue must be paid to the county treasurer, to be by him 
paid over to the owner, or his representative or assigns, on the production of 
satisfactory proof of ownership to the probate judge, and on his order 
therefor made within one (1) year after its receipt. 

History. 

R.S., § 833; reen. R.C. & C.L., § 870; C.S., 
§ 1298; I.C.A., § 37-304. 



55 FLOATING TIMBER 38-807 

STATUTORY NOTES 

Compiler's Notes. 

The office of probate judge was abolished in 
1969. See § 1-103. 

RESEARCH REFERENCES 

Am. Jut. — 52 Am. Jur. 2d, Logs and C.J.S. — 54 C.J.S., Logs and Logging, §§ 2, 

Timber, § 105 et seq. 36, 37. 

38-805. Rejection of claimant's right — Disposition of proceeds. 

— The rejection by the probate judge of any claimant's right to such 
proceeds is conclusive, unless, within six (6) months thereafter, he com- 
mences action therefor. In case no claim is made or sustained to such 
proceeds, the same must, by the county treasurer, be placed in the common 
school fund of the county. 

History. 

R.S., § 834; reen. R.C. & C.L., § 871; C.S., 
§ 1299; I.C.A., § 37-305. 

STATUTORY NOTES 

Compiler's Notes. 

The office of probate judge was abolished in 
1969. See § 1-103. 

38-806. Dams and booms — Limitation on construction. — No dam 

or boom must be hereafter constructed or permitted on any creek or river, 
unless said dam or boom has connected therewith a sluiceway, lock or fixture 
sufficient and so arranged as to permit timber to pass around, through or 
over said dam or boom without unreasonable delay or hindrance. 

History. 

1885, p. 177, § 6; R.S., § 835; reen. R.C. & 
C.L., § 872; C.S., § 1300; I.C.A., § 37-306. 

JUDICIAL DECISIONS 

Effect of Section. Cited in: Northern Pac. R.R. v. Hirzel, 29 

This section prohibits construction of any Idaho 438, 161 P. 854 (1916). 
dam or boom, on any creek or river, which will 
unreasonably delay or hinder passage of float- 
ing timber. Potlatch Lumber Co. v. Peterson, 
12 Idaho 769, 88 P. 426 (1906). 

RESEARCH REFERENCES 

Am. Jur. — 52 Am. Jur. 2d, Logs and 
Timber, § 75 et seq. 

38-807. Booms and weirs as nuisances — Abatement — Liability 
of owner. — Any boom or weir in or over any creek or river so constructed 
as to prevent the passage of logs or lumber, is a public nuisance, which may 



38-808 FORESTRY 56 

be abated unless a suitable sluiceway, lock or passage be made thereon, 
within thirty (30) days after written notice given by any person interested, 
and any person owning, holding or occupying such boom or weir is liable to 
pay five dollars ($5.00) for every day the same remains in or over said creek 
or river, after thirty (30) days' notice to remove the same, and is liable for 
any damages sustained by individuals by reason of said boom or weir. 

History. R.C. & C.L., § 873; C.S., § 1301; I.CA., § 37- 

1885, p. 177, § 7; am. R.S., § 836; reen. 307. 

JUDICIAL DECISIONS 

Analysis 

Erection of dams. 

Liability for nuisance and damages. 

Railroads impeding navigation. 

Erection of Dams. obstruction, is liable to an action to abate 

Every person has the right to float logs same as a nuisance and for damages caused 

down anv stream sufficient in volume to carry v. • ±. t» n o • 

such commodity, but he has no right to tres- ^ its maintenance. PoweU v. Sprmgston 

pass upon the lands through which stream Lumber Co., 12 Idaho 723, 88 P. 97 (1906). 
flows and erect dams in such stream to in- . 

crease volume of water for floating. A stream Railroads Impeding Navigation. 
not capable of carrying logs without the con- Railroad company building its tracks along 

struction of dams is not navigable for floating course of stream and crossing it from time to 

of logs. La Veine v. Stack-Gibbs Lumber Co., time is chargeable with notice of its naviga- 

17 Idaho 51, 104 P. 666 (1909). bmty for noating \ ogs aild must build its road 

Liability for Nuisance and Damages. ^ such wa Y ^ not to unreasonably impede 

One who constructs a boom or obstruction navigation. Idaho N. Pac. R.R. v. Post Falls 

across navigable stream, in such a way as to Lumber & Mfg. Co., 20 Idaho 695, 119 P. 1098 

prevent others cLriving logs past the boom or (1911). 

RESEARCH REFERENCES 

Am. Jur. — 52 Am. Jur. 2d, Logs and 
Timber, § 75 et seq. 

38-808. Recording log brands — Penalty. — (1) Definitions: 

(a) "Person" includes the plural and all corporations, foreign and domes- 
tic, copartnerships, firms and associations of persons. 

(b) "Forest products." For the purposes of this section only, "forest 
products" means all products derived from trees including, but not limited 
to, saw logs, veneer logs, poles, cedar products, pulp logs, fence posts and 
every form into which a fallen tree may be cut before it is manufactured 
into lumber or run through a processing mill or cut into cordwood, stove 
wood or hewn ties. 

(c) "Log brand" means a unique symbol or mark placed on or in forest 
products for the purpose of identifying ownership. 

(2) Any owner of forest products in the state of Idaho may use thereon 
any log brand, which may be applied as a stamped symbol, log brand or 
affixed tag, not currently registered by any other person in the state; but 
before any such log brand shall be used, it shall be the duty of such owner 
intending to use the same to cause a diagram, and a full and complete 
written description of his log brand, signed by him, to be submitted on 



57 FLOATING TIMBER 38-808 

"Registration of Log Brands" forms to the office of the Idaho board of scaling 
practices, who shall record the same upon receipt of a payment of twenty- 
five dollars ($25.00), provided the log brand is different from any other log 
brand currently registered in that office. It shall be the duty of the person in 
charge of the Idaho board of scaling practices office to keep a record of all 
registered log brands, which record shall at all reasonable times be open to 
public inspection. 

(3) All applications for log brands and/or renewals shall be submitted to 
and approved by the Idaho board of scaling practices prior to use. Such 
application shall be made on duplicate log brand registration forms and 
shall include a diagram or an impression of the log brand stamped on the 
form, a written description of the log brand and be signed by the person or 
the agent of the person. The Idaho board of scaling practices may refuse to 
approve any log brand which is identical to or closely resembles a currently 
registered log brand. If approval is denied, the applicant will select another 
log brand. No person shall brand any prize log. 

(4) The expiration date for all log brands registered prior to January 1, 
1981, shall be February 28, 1994; the expiration date for all log brands 
registered from January 1, 1981, through December 31, 1985, shall be 
February 28, 1995; the expiration date for all log brands registered from 
January 1, 1986 through December 31, 1989, shall be February 28, 1996; the 
expiration date for all log brands registered from January 1, 1990, through 
December 31, 1992, shall be February 28, 1997. Beginning January 1, 1993, 
renewals or newly approved registrations shall expire on February 28, five 
(5) years after the year of registration or renewal. Notification of expiration 
will be sent during the month of September of the year preceding the 
expiration date. A renewal fee of twenty-five dollars ($25.00) shall be 
charged each time a log brand is renewed by the same person. 

(5) To assign ownership of a currently registered log brand, the current 
registered owner of the log brand shall file with the Idaho board of scaling 
practices a signed and duly notarized instrument on forms provided by the 
board. Such forms shall specify the effective date of transfer, the assignee 
and the log brand to be assigned. A fee of twenty-five dollars ($25.00) shall 
be charged for each transfer. The transferred log brand will be issued a new 
registration number and shall expire February 28, five (5) years after the 
year of the transfer. 

Any failure to renew a log brand as required by law shall be deemed an 
abandonment of same. Abandoned or canceled log brands shall not be 
reissued for a period of one (1) year unless the Idaho board of scaling 
practices so authorizes for cause. Any other person may be at liberty to 
adopt or use the abandoned log brand; but the other person shall not claim 
or use it until after it has been registered in the other person's own name as 
provided by this section. 

(6) Failure to comply with the provisions of this section shall be deemed 
a violation of the log brand law. Upon request of the Idaho board of scaling 
practices or its chairperson, it shall be the duty of the attorney general to 
institute and prosecute civil enforcement actions. In addition, when deemed 
by the board to be necessary, the board may retain private counsel to 
institute and prosecute civil enforcement actions. Any person who has been 



38-809 FORESTRY 58 

determined to have violated the provisions of this chapter shall be liable for 
any expense, including reasonable attorney's fees, incurred by the state in 
enforcing the provisions of this chapter. Any violation of this section shall be 
deemed a misdemeanor and any person, upon conviction, shall be sentenced 
to pay a fine of not less than one hundred dollars ($100) nor more than five 
hundred dollars ($500). 

History. § 1, p. 219; am. 1995, ch. 177, § 1, p. 660; am. 

1973, ch. 198, § 1, p. 449; am. 1993, ch. 92, 2008, ch. 200, § 2, p. 646. 

STATUTORY NOTES 

Cross References. scaling practices" for "state board of scaling 

Idaho board of scaling practices, § 38-1203. practices"; and in subsection (6), twice substi- 



Amendments. 

The 2008 amendment, by ch. 200, through- «fKeact * 
out the section, substituted "Idaho board of 



tuted "this section" for "section 38-808, Idaho 
Code" and twice substituted "this chapter" for 



38-809. Prize logs — Sale at public auction. — All logs or timbers 
suitable for manufacture into lumber, ties, poles, or other timber products, 
not bearing a legally recorded mark or marks, which shall be placed aboard 
a transport vehicle for land transportation or placed afloat on a waterway, or 
permitted to be afloat upon any of the public waters of this state, not 
confined in booms or rafts, and all such logs or timbers bearing a legally 
recorded mark or marks not claimed within one (1) year after being placed 
in transit or afloat shall be prize logs, and no evidence of any private 
ownership thereof shall be admissible in any proceeding. Prize logs shall be 
sold by or under the direction of the Idaho board of scaling practices, and the 
proceeds of such sale, after deducting the expense of the sale and transpor- 
tation or other charges incurred in getting said logs to the sale site shall go 
into the state scaling fund [account]. Such sale shall be at public auction 
after publication of notice of time and place thereof for not less than three (3) 
consecutive weeks in a newspaper of general circulation printed and 
published in the county in which the sale is to be held. It shall be the duty 
of every person having custody or possession of prize logs to deliver them to 
the Idaho board of scaling practices upon demand. 

History. 

1973, ch. 198, § 2, p. 449; am. 2008, ch. 200, 



3, p. 647. 



STATUTORY NOTES 



Cross References. Compiler's Notes. 

Idaho board of scaling practices, § 38-1203. The bracketed insertion was added by the 

State scaling account, § 38-1209. compiler to supply the correct name of the 

Amendments. referenced account. 

The 2008 amendment, by ch. 200, twice 

substituted "Idaho board of scaling practices" 

for "state board of scaling practices." 



59 STUMPAGE DISTRICTS 38-1001 

CHAPTER 9 
INSPECTION OF LUMBER 

SECTION. 

38-901 — 38-913. [Repealed.] 

38-901 — 38-913. Inspection of lumber — Procedure. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. §§ 1, 2, p. 73; 1921, ch. 43, §§ 1, 2, p. 69; 

These sections, which comprised S.L. 1903, I.C.A., §§ 37-401 to 37-413, were repealed by 

p. 89, §§ 1 to 12; R.C. & C.L., §§ 1494 to S.L. 1967, ch. 328, § 8, effective January 1, 

1505; C.S., §§ 2341 to 2351; 1919, ch. 11, 1968. 

CHAPTER 10 
STUMPAGE DISTRICTS 

SECTION. SECTION. 

38-1001. Corporate powers of stumpage dis- 38-1014. Assessments entered as tax liens — 

oo ,™o t, .... tric r s - Installments. 

38-1002. Petition for organization. co 1A1 _ A , e , 

38-1003. Bond for costs if district not estab- 38-1015. Appeals from assessments. 

lished. 38-1016. Clearing of lands — Executive pow- 
38-1004. Notice of hearing. ers of board. 

™~™$- Hearing and order. 38-1017. Contract for clearing — Contrac- 
38-1006. Appointment of stumpage commis- , , , 

sioners - Organization of „„• _ „ tors bonds. 

b oar d. 38-1018. Payment to contractors. 

38-1007. Officers — Meetings. 38-1019. Warrants. 

38-1008. Vacancies. 38-1020. Payment of warrants — Interest. 

38-1009. Compensation of commissioners. 38-1021. Bonds authorized. 

38-1010. Preliminary survey. 38-1022. Refunding bonds. 

38-1011. Duties of prosecuting attorney. 38-1023. Form of bonds — Interest. 

38-1012. Report of intention to do work — 38-1024. Levy for sinking fund. 

Notice of hearing. 38-1025. Payment of bonds. 

38-1013. Order of confirmation — Assess- 38-1026. Levy for interest. 

ment of benefits. 38-1027. Registration of bonds. 

38-1001. Corporate powers of stumpage districts. — Any portion of 
a county requiring stumps removed from lands may be organized into a 
stumpage district, and when so organized such district shall be known and 

designated as stumpage district no of the county of of the state of 

Idaho, shall have the right to sue and be sued by and in the name of its board 
of commissioners hereinafter provided for, shall have perpetual succession 
and shall adopt and use a seal. The commissioners hereinafter provided for 
and their successors in office shall, from the time of the organization of such 
stumpage district, have the power and it shall be their duty to manage and 
conduct the business and affairs of the said district and make and execute 
all necessary contracts for the stumping of any and all land in said district. 

History. 

1917, ch. 15, § 1, p. 33; compiled and reen. 
C.L. 169:1; C.S., § 4556; I.C.A., § 37-501. 



38-1002 FORESTRY 60 

STATUTORY NOTES 

Compiler's Notes. legislation on the subject. The law is appar- 

The provisions passed 1917, ch. 15, p. 33, by ently modeled after the drainage district law, 

§ 24, p. 42, repealed a prior law 1915, ch. 128, § 42-2901 et seq. 
p. 273, which seems to have been the first 

38-1002. Petition for organization. — For the purpose of the forma- 
tion of such stumpage district a petition shall be presented to the board of 
county commissioners of the county in which said proposed stumpage 
district is located, which petition shall set forth the object for the organiza- 
tion of the said district, shall designate the boundaries thereof and set forth 
therein approximately the number of acres of land to be stumped by the 
proposed stumpage system; and shall also contain the names of all the 
freeholders residing within said proposed district, so far as known, and the 
names and post-office addresses of all owners and mortgagees of land within 
said proposed district, so far as known, and shall contain a description of the 
land sought to have the stumps removed therefrom. Said petition shall be 
signed by a majority of the owners of the land in said proposed district and 
shall pray that the same be organized under the provisions of this chapter. 

History. 

1917, ch. 15, part of § 2, p. 34; reen. C.L. 
169:2; C.S., § 4557; I.C.A., § 37-502. 

38-1003. Bond for costs if district not established. — Said petition- 
ers shall, at the time of filing of the petition, file a bond with the board of 
county commissioners of the county in which said proposed district is 
located, running to the state of Idaho, in the penal sum of $100.00, with two 
or more sureties, to be approved by the county commissioners, conditioned 
that they will pay all costs in said district [if] for any reason same shall not 
be established. 

In case said district be not established, then all costs and expenses shall 
be collectible on the bonds hereinbefore provided for, and any person having 
a charge against said district shall have a right of action thereon. 

History. reen. C.L. 169:3; C.S., § 4558; I.C.A., § 37- 

1917, ch. 15, parts of §§ 2, 4, pp. 35, 36; 503. 

STATUTORY NOTES 

Compiler's Notes. first paragraph was added by the compiler to 

The bracketed insertion near the end of the supply an obviously missing word. 

38-1004. Notice of hearing. — After filing said petition with the board 
of commissioners, the said board shall thereupon fix a time for hearing said 
petition by order made by them, which order shall provide the time and 
place said commissioners will hear said petition. A notice of said hearing 
must be served upon each one owning land in said proposed district, setting 
forth the time and place of hearing said petition. 



61 STUMPAGE DISTRICTS 38-1006 

History. 

1917, ch. 15, § 3, p. 35; reen. C.L. 169:4; 
C.S., § 4559; I.C.A., § 37-504. 

STATUTORY NOTES 

Cross References. 

Notice by mail, § 60-109A. 

38-1005. Hearing and order. — Upon the hearing of said petition, as 
set forth in the last preceding section, the county commissioners of the 
county in which the said proposed stumpage district is located, if they find 
said proposed stumpage district will be a benefit to the majority in acreage 
of the lands included in the petition, shall declare said district duly 

organized, to be known as stumpage district no of the county of , 

state of Idaho. In order to establish a stumpage district there must be not 
less than one hundred sixty (160) acres of land to be cleared. 

The clerk of said county commissioners shall cause a copy of the order 
declaring said district to be organized, duly certified, to be filed in the county 
recorder's office of the county in which the said proposed district is 
organized, and from and after the date of said filing said organization shall 
be deemed complete. 

History. compiled and reen. C.L. 169:5; C.S., § 4560; 

1917, ch. 15, parts of §§ 4, 13, pp. 35, 39; I.C.A., § 37-505. 

38-1006. Appointment of stumpage commissioners — Organiza- 
tion of board. — The county commissioners within ten (10) days thereafter 
shall appoint three (3) stumpage commissioners. The commissioners shall 
be appointed from among those owning land in the proposed district. The 
board of stumpage commissioners appointed as aforesaid shall be entitled to 
enter upon the duties of their office upon qualifying as county officers are 
required to qualify, and upon each stumpage commissioner giving a bond to 
the state of Idaho, for the benefit of said stumpage district, for the faithful 
performance of his duties as such commissioner, in the penal sum of $1,000 
with one (1) or more sureties, to be approved by the said board of county 
commissioners. The stumpage commissioners shall take oath of office and 
file their bonds within fifteen (15) days after they are appointed, and they 
shall hold office until their successors are duly appointed and qualified. 
Each stumpage commissioner thereafter who may be appointed shall enter 
into a like bond of like effect upon entering upon his duties, which bond shall 
be approved by the county commissioners. The bonds of the stumpage 
commissioners shall be filed and kept in the county recorder's office. 
Immediately after their appointment and their bonds have been filed and 
approved, the stumpage commissioners shall organize themselves into a 
board, and they shall by lot determine the terms of their office, which shall 
be one (1), two (2) and three (3) years, respectively Annually thereafter the 
county commissioners of the county said district is located in shall appoint 
one (1) stumpage commissioner whose term of office shall be three (3) years. 



38-1007 FORESTRY 62 

History. 

1917, ch. 15, parts of §§ 4 and 5, p. 35; reen. 
C.L. 169:6; C.S., § 4561; I.C.A., § 37-506. 

38-1007. Officers — Meetings. — The board of commissioners of such 
district shall elect one of their number chairman and one (1) secretary and 
shall keep minutes of all their proceedings. 

The stumpage commissioners shall hold their meetings for the transac- 
tion of business at any place in the county in which the district is located. 

History. piled and reen. C.L. 169:7; C.S., § 4562; 

1917, ch. 15, parts of §§ 6, 7, p. 36; com- I.C.A., § 37-507. 

38-1008. Vacancies. — In case a vacancy or vacancies occur in said 
board by death, failure to appoint, failure to qualify, by resignation or failure 
to perform duties of one (1) or more of the members thereof, such vacancy or 
vacancies shall be filled at once by appointment by the county commission- 
ers of the county in which said district is located, and said appointee shall 
serve for the unexpired term or until his successor is appointed and his bond 
approved. 

History. 

1917, ch. 15, part of § 8, p. 37; reen. C.L. 
169:8; C.S., § 4563; I.C.A., § 37-508. 

38-1009. Compensation of commissioners. — The stumpage com- 
missioners shall receive for their services the sum of three dollars ($3.00) 
per day each and their necessary traveling expenses for each day they shall 
actually be engaged in the business of their office. The stumpage commis- 
sioners shall present an itemized account, under oath, to the county 
commissioners of the amounts due them, respectively, which items shall be 
audited at any regular meeting of said board of commissioners, and upon 
approval of the amounts, certified to be correct by said commissioners, 
warrants for said amounts against the stumpage district shall be issued in 
the usual manner, as other warrants are issued: provided, that warrants 
issued under this section shall, in addition to the usual signatures, be 
countersigned by the chairman of the board of county commissioners 
approving said warrants. 

History. 

1917, ch. 15, part of § 7. p. 36; reen. C.L. 
169:9; C.S., § 4564; I.C.A., § 38-509. 

38-1010. Preliminary survey. — As soon as may be after the appoint- 
ment of the commissioners of said district by the county commissioners the 
county commissioners shall engage the services of a registered surveyor or 
engineer who shall, for the purpose of compiling data to be presented to the 
commissioners of said district, make a survey, maps, estimate of costs of 
stumping and clearing, also any other data that may be necessary or 
required by said commissioners, at such fee as may be agreed upon between 
said registered surveyor or engineer and the county commissioners. 



63 STUMPAGE DISTRICTS 38-1013 

History. C.L. 169:10; C.S., § 4565; I.C.A., § 37-510; 

1917, ch. 15, § 9, p. 37; compiled and reen. am. 1963, ch. 68, § 1, p. 260. 

STATUTORY NOTES 

Cross References. 

County surveyor, § 31-2705 et seq. 

38-1011. Duties of prosecuting attorney. — Upon application of the 
landowners by petition to the county commissioners for the organization of 
a stumping and clearing land district, the prosecuting attorney of said 
county shall draw up all papers, such as contracts and form of warrants, and 
act as the legal adviser of all officers, doing all legal work necessary in 
perfecting said stumping district and proposed work without charge. 

History. 

1917, ch. 15, § 10, p. 37; compiled and reen. 
C.L. 169:11; C.S., § 4566; I.C.A., § 37-511. 

STATUTORY NOTES 

Cross References. 

Prosecuting attorney, § 31-2601 et seq. 

Compiler's Notes. 

The words "stumping and clearing," were 
enacted as "stumping and cleaning." 

38-1012. Report of intention to do work — Notice of hearing. — If 

the stumpage commissioners shall find, after investigation, that the costs, 
expenses and damages are more than equal to the benefits that will be 
bestowed upon the lands to be benefited, they shall so report and the 
proceeding shall be dismissed. But if the stumpage commissioners shall 
report that the whole costs of the works, including preliminary surveys and 
expenses, will be less than the benefits received therefrom, they shall so 
report to the board of county commissioners, and the county commissioners 
shall then make and enter an order fixing a time and place when and where 
all persons interested may appear and contest the confirmation thereof, and 
the clerk of the board of county commissioners shall cause notices of the 
time and place of said hearing to be given to all parties interested by mailing 
a notice to each landowner mentioned in the petition at least ten (10) days 
before the day of hearing by depositing it in the United States post office, 
with postage prepaid. 

History. 

1917, ch. 15, § 11, p. 37; compiled and reen. 
C.L. 169:12; C.S., § 4567; I.C.A., § 37-512. 

38-1013. Order of confirmation — Assessment of benefits. — Upon 
the entering of the order confirming the assessment for benefits as 
hereinbefore provided for, the clerk of the board of county commissioners 
shall immediately prepare a transcript which shall contain a list of all lands 
which have been assessed to be cleared of stumps in said district and the 
cost per acre and shall certify the same to the recorder of the county in which 



38-1014 FORESTRY 64 

said lands are situated, and said statement so certified shall specify the 
amount of the assessment upon each acre, parcel or governmental subdivi- 
sion. The said county recorder shall thereupon enter such order of record 
and the same shall be notice of a lien by notice of said assessment to all 
persons. 

History. 

1917, ch. 15, part of § 12, p. 38; reen. C.L. 
169:13; C.S., § 4568; I.C.A., § 37-513. 

38-1014. Assessments entered as tax liens — Installments. — A 

similar transcript duly certified by the said clerk, which shall contain a list 
of the names of all persons and corporations benefited by said improvements 
and the amount of the assessment upon each acre, parcel or governmental 
subdivision shall be by said clerk filed with the auditor of the county, who 
shall immediately enter the same upon the tax rolls of his office, as provided 
by law for the entry of other taxes, against the land of each of the said 
persons named in the list, together with the amount thereof. The same shall 
be subject to the same interest and penalties in case of delinquency as in 
case of general taxes and shall be collected in the same manner as other 
taxes and subject to the same rights of redemption. The land sold for the 
collection of said taxes shall be subject to the same rights of redemption as 
lands sold for general taxes: provided, that the said assessment shall not 
become due and payable except at such time or times and in such amounts 
as may be designated by the stumpage commissioners of said stumpage 
district, which designation shall be made to the county auditor by said 
stumpage commissioners of said stumpage district by serving written notice 
upon the county auditor designating the same and the amount of the 
assessment, said assessment to be in proportion to the sums to become due 
and payable, which amount shall fall due at the time of the falling due of 
general taxes, and the amounts so designated shall be added by the auditor 
to the general taxes of said person, persons or corporation, according to said 
notice, upon the assessment rolls in his said office, and collected therewith: 
and, provided further, that no one call for assessment by said stumpage 
commissioners shall be in an amount to exceed ten per cent (10%) of the 
actual amount necessary to pay the cost of proceeding and the establish- 
ment of said district and the stumping of said land for each year after the 
commencement of said work of removing the stumps therefrom. 

History. 

1917, ch. 15, part of § 12, p. 38; reen. C.L. 
169:14; C.S., § 4569; I.C.A., § 37-514. 

STATUTORY NOTES 

Cross References. 

Tax collection, § 63-901 et seq. 

38-1015. Appeals from assessments. — Every person or corporation 
feeling himself or itself aggrieved by the assessment for benefits may appeal 



65 STUMPAGE DISTRICTS 38-1017 

to the district court of said county in which said improvement district is 
located in the manner provided by law for appeals from any order of the 
county commissioners. Such appeal shall bring before the district court the 
justice of assessment of benefits in respect to the parties to the appeal. 

History. 

1917, ch. 15, § 23, p. 42; reen. C.L. 169:15; 
C.S., § 4570; I.C.A., § 37-515. 

STATUTORY NOTES 

Cross References. 

Appeals from orders of county commission- 
ers, §§ 31-1506. 

38-1016. Clearing of lands — Executive powers of board. — Said 
board of stumpage commissioners hereinbefore provided for shall have the 
exclusive charge of the stumping and clearing of said land in said district 
which heretofore has been or may be hereinafter organized under the 
provisions of this title, and shall be the executive officers thereof with full 
power to bind such district by their acts in the performance of their duties 
as provided by law. 

History. 

1917, ch. 15, part of § 8, p. 37; reen. C.L. 
169:16; C.S., § 4571; I.C.A., § 37-516. 

38-1017. Contract for clearing — Contractor's bonds. — As soon as 
may be after the organization of a stumpage district and the report of a 
county surveyor with maps have [has] been received by the commissioners 
of said stumpage district, they shall proceed as soon as may be deemed 
expedient to let a contract for the stumping and clearing of said land in said 
district: provided, that said contract shall be let to the lowest bidder: 
provided further, that in case the whole or any portion of said land clearing 
is let to any contractor, said commissioners shall require the said contractor 
to give a bond equal to the amount of said contract so let, with two (2) or 
more sureties, to be approved by the board of commissioners of said 
stumpage district and running to said district as obligee therein, condi- 
tioned for the faithful performance of said contract: provided further, that 
said contractor shall pay or cause to be paid all just claims of all persons 
performing labor or rendering service in the stumping and clearing of said 
lands: provided, further, that the said contractor shall pay for all material, 
merchandise or provisions furnished of any kind or character and used by 
said contractor in the stumping and clearing of said lands: provided, further, 
that no sureties on said bond shall be liable thereon unless the person 
performing said labor and furnishing said material, merchandise and 
provisions shall, within ninety (90) days after the completion of said work, 
file his claim, duly verified that the same is just, due, and unpaid, with the 
board of commissioners of said stumpage district: provided, further, no 
contract shall be let before a notice shall be published in a newspaper in said 
county, at least in two (2) issues of said paper, asking for bids for said work. 



38-1018 FORESTRY 66 

History. 

1917, ch. 15, § 14, p. 39; compiled and reen. 
C.L. 169:17; C.S., § 4572; I.C.A., § 37-517. 

STATUTORY NOTES 

Cross References. of the section was added by the compiler to 

Public contracts bond act, § 54-1925, correct the syntax of the sentence. 

Publication requirements, § 60-109. 

Compiler's Notes. 

The bracketed insertion near the beginning 

38-1018. Payment to contractors. — During the construction of said 
improvements, said stumpage commissioners shall have the right to allow 
payments thereof in instalments, as the work progresses, in proportion to 
the amount of work completed: provided, that no allowance or payment shall 
be made for said work to any contractor or subcontractor to exceed 
seventy-five per cent (75%) of the proportionate amount of the work 
completed by such contractor or subcontractor, and twenty-five per cent 
(25%) of the contract price shall be reserved at all times by said stumpage 
commissioners until said work is wholly completed and shall not be paid, 
upon the completion of said work, until ninety (90) days have expired for the 
presentation of all claims for labor performed and materials furnished or 
used in the stumping of said land. Upon the completion of said work and the 
payment of all claims hereinbefore provided for, according to the terms and 
conditions of said contract, said commissioners shall accept said work and 
pay the contract price therefor. 

History. 

1917, ch. 15, § 15, p. 40; reen. C.L. 169:18; 
C.S., § 4573; I.C.A., § 37-518. 

38-1019. Warrants. — The board of commissioners may issue warrants 
of such district in payment of claims of indebtedness against such district. 
Such warrants shall be in form and substance the same as county warrants, 
or as near the same as may be practicable, and shall draw interest (at) from 
the date of issue at a rate established by the board of commissioners. They 
must be signed by the chairman and attested by the secretary of said board: 
provided, that no warrant shall be issued by said board of commissioners in 
payment of any indebtedness of such district for less than the face or par 
value. 

History. 169: 19; C.S, § 4574; I.C.A., § 37-519; am. 

1917, ch. 15, part of § 6, p. 36; reen. C,L. 1980, ch. 61, § 5, p. 118. 

STATUTORY NOTES 

Compiler's Notes. Effective Dates. 

The word "at" in the second sentence was Section 14 of S.L. 1980, ch. 61 declared an 

enclosed in parentheses by the compiler as emergency. Approved March 11, 1980. 
surplusage. 

38-1020. Payment of warrants — Interest. — All warrants issued 



67 STUMPAGE DISTRICTS 38-1022 

under the provisions of this chapter shall be presented by the holder thereof 
to the county treasurer, who shall indorse thereon the day of presentation 
for payment, with the additional indorsement thereof, in case of nonpay- 
ment, that they are not paid for want of funds; and no warrant shall draw 
interest under the provisions of this chapter until it is so presented and 
indorsed by the county treasurer. And it shall be the duty of such treasurer 
from time to time, when he has sufficient funds in his hands for that 
purpose, to advertise in a newspaper for the presentation to him for 
payment of the outstanding warrants as he may be able to pay: provided, 
that thirty (30) days after the first publication of said notice of the treasurer 
calling in any of said outstanding warrants said warrants shall cease to bear 
interest. 

History. 

1917, ch. 15, § 22, p. 42; reen. C.L. 169:20; 
C.S., § 4575; I.C.A., § 37-520. 

STATUTORY NOTES 

Cross References. indorsement, interest rate, §§ 31-2124, 31- 

Nonpayment of warrants for want of funds, 2125. 

38-1021. Bonds authorized. — Upon the establishment of any stump- 
age district under the provisions of this chapter and the establishment of a 
system of stumping lands therein as provided for in this chapter, the board 
of stumpage commissioners of such district are [is] hereby authorized to 
issue coupon bonds to pay for the total cost of the work and improvements 
incurred or to be incurred, or, of the part of the work and improvements 
assumed or contracted for, or to be assumed or contracted for, together with 
the costs of the organization of said district and the establishment thereof, 
including damages assessed and compensation made or to be made to the 
landowners for expense and costs of the entire proceedings, payable at a 
time not less than five (5) years nor longer than twenty (20) years from the 
date thereof: provided, that no bonds shall, under the provisions thereof, be 
sold for less than par value. 

History. 

1917, ch. 15, parts of § 16, pp. 40, 41; reen. 
C.L. 169:21; C.S., § 4576; I.C.A., § 37-521. 

STATUTORY NOTES 

Compiler's Notes. of the section was added by the compiler to 

The bracketed insertion near the beginning correct the syntax of the sentence. 

38-1022. Refunding bonds. — Such stumpage commissioners may, at 
any time thereafter, issue such bonds in the manner and form herein 
prescribed for the purpose of funding any outstanding warrants or obliga- 
tions of such district. In case of such last-named issue all the outstanding 
warrants shall immediately become due and payable upon receipt of the 
money by the county treasurer from the sale of said bonds and upon a call 



38-1023 FORESTRY 68 

of such outstanding obligations to be issued by him. Such call shall be made 
by the treasurer immediately upon the receipt of the proceeds from the sale 
of said bonds, by publication for two (2) weeks in a newspaper published in 
the county wherein said district is situated, and such warrants and 
outstanding obligations shall cease to draw interest at the end of thirty (30) 
days after the date of the first publication. 

History. 

1917, ch. 15, part of § 16, p. 40; reen. C.L. 
169:22; C.S., § 4577; I.C.A., § 37-522. 

STATUTORY NOTES 

Cross References. 

Publication requirements, § 60-109. 

38-1023. Form of bonds — Interest. — Said bonds shall be numbered 
from one (1) upward, consecutively, and be in denomination of not less than 
$100 nor more than $500. They shall bear the date of issue, shall be made 
payable to the bearer in not more than twenty (20) years nor less than five 
(5) years from the date of their issue and bear interest payable annually, 
with coupons attached for each interest payment. The bonds and each 
coupon shall be signed by the chairman of the board of stumpage commis- 
sioners and shall be attested by the secretary of said board, and the seal of 
such district shall be affixed to each bond but not to the coupons. 

History. C.S., § 4578; I.C.A., § 37-523; am. 1970, ch. 

1917, ch. 15, § 17, p. 41; reen. C.L., 169:23; 133, § 1, p. 309. 

38-1024. Levy for sinking fund. — Five (5) years after said bonds 
have been issued the stumpage commissioners of said district issuing them 
are hereby authorized and required annually to levy an assessment suffi- 
cient to liquidate said bonds at maturity. Such assessment shall be collected 
by the official whose duty it is to collect taxes and kept as a separate fund for 
the sole purpose of liquidating said bonds in accordance with the provisions 
of the following section. 

History. 

1917, ch. 15, § 18, p. 41; reen. C.L. 169:24; 
C.S., § 4579; I.C.A., § 37-524. 

38-1025. Payment of bonds. — It shall be the duty of the county 
treasurer of any county in which there may be a stumpage district issuing 
bonds under the provisions of this chapter, whenever he has upon hand 
$2,000 of the special fund for the payment of said bonds and when said 
bonds shall have run for a period of five (5) years, to advertise in a 
newspaper for the presentation to him for payment of as many of the bonds 
issued under the provisions of this chapter as he is able to pay with the 
funds, to be paid in numerical order of said bonds, beginning with the bond 
number one, until all of said bonds are paid: provided, that thirty (30) days 
after the first publication of said notice of the treasurer calling in any of said 
bonds, said bonds shall cease to bear interest. 



69 SALE OF LUMBER PRODUCED OUTSIDE OF THE STATE 38-1102 

History. 

1917, ch. 15, § 19, p. 41; reen. C.L. 169:25; 
C.S., § 4580; I.C.A., § 37-525. 

38-1026. Levy for interest. — It shall be the duty of such stumpage 
commissioners annually to levy an assessment against the land sufficient 
for the payment of the coupons hereinbefore mentioned as they fall due. 
Said coupons shall be considered for all purposes as warrants drawn upon 
the funds of the district issuing bonds under the provisions of this title, and 
when presented to the county treasurer after they are due the said treasurer 
must pay same out of the fund taking up said bonds and cancel the same, 
after which the same must be delivered over to the stumpage commission- 
ers. 

History. 

1917, ch. 15, § 20, p. 41; reen. C.L. 169:26; 
C.S., § 4581; I.C.A., § 37-526. 

38-1027. Registration of bonds. — Before the bonds are delivered to 
the purchaser they shall be presented to the county treasurer, who shall 
register them in a book kept for that purpose and known as the bond 
register, in which register he shall enter the number of each bond, the date 
of issue, the maturity, amount and rate of interest, to whom and when 
payable, and the proceeds derived from the sale of said bonds shall, in all 
cases, be paid by the purchaser thereof to the county treasurer. 

History. 

1917, ch. 15, § 21, p. 42; reen. C.L. 169:27; 
C.S., § 4582; I.C.A., § 37-527. 

CHAPTER 11 

SALE OF LUMBER PRODUCED OUTSIDE OF THE 

STATE 

SECTION. SECTION. 

38-1101. Sale of lumber or lumber products 38-1102. Penalty, 
produced outside of the state 
of Idaho. 

38-1101. Sale of lumber or lumber products produced outside of 
the state of Idaho. — It shall be unlawful for any individual or corporation 
to sell or offer for sale or dispose of, in any manner, any lumber or lumber 
products which have been imported into the state of Idaho from any foreign 
country without the same being plainly labeled in such a manner as to show 
the country from which said product came or in which they were produced. 

History. 

1965, ch. 174, § 1, p. 358. 

38-1102. Penalty. — Any person or persons violating any of the provi- 
sions of this act shall be deemed guilty of a misdemeanor and on conviction 



38-1201 



FORESTRY 



70 



thereof shall be fined not less than fifty dollars ($50.00) nor more than one 
hundred dollars ($100). 

History. 

1965, ch. 174, § 2, p. 358. 

STATUTORY NOTES 

Compiler's Notes. Effective Dates. 

The words "this act" refer to S.L. 1965, ch. Section 3 of S.L. 1965, ch. 174, declared an 

174, which is compiled as §§ 38-1101 and emergency. Approved March 18, 1965. 
38-1102. 

CHAPTER 12 
LOG SCALING 



SECTION. 

38-1201. Log scaling practitioners — License 
requirement. 

38-1202. Definitions. 

38-1203. Idaho board of scaling practices — 
Members — Terms. 

38-1204. Qualifications. 

38-1205. Compensation. 

38-1206. Removal — Vacancies. 

38-1207. Meetings — Officers — Quorum. 

38-1208. Adoption of rules and seal — Main- 
tenance of office — Hearings 

— Penalties for contempt. 
38-1209. Levy of assessment — Budget — 

Hearing — Funds — Bond of 
secretary — Salary. 
38-1210. Record of proceedings — Register of 
applications for registration 

— Annual report to governor. 

38-1211. Roster of licensed scalers. 

38-1212. Applicants eligible for license. 

38-1213. Application forms — Fee. 

38-1214. Examinations — Certificate of reg- 
istration. 



SECTION. 

38-1215. 



38-1216. 

38-1217. 

38-1218. 

38-1219. 
38-1220. 
38-1220A 

38-1221. 



38-1222. 



Checkscalers — Appointment — 
Checkscaling criteria — Re- 
port — Bond. 

Apprenticeship certificates — Tem- 
porary permits. 

Expiration of certificate of registra- 
tion — Renewal — Fees. 

Revocation or suspension of certifi- 
cate. 

Reissuance or reinstatement. 

Scaling methods used. 

. Inspection — Investigation — Vi- 
olations — Enforcement — 
Penalty. 

Commencement of civil enforce- 
ment actions — Criminal ac- 
tions and penalties authorized 
— Duties of attorney general 
and prosecuting attorneys. 

Appeal from checkscale to board — 
Appeal from board to court. 



38-1201. Log scaling practitioners — License requirement. — 

Every person practicing or offering to practice log scaling as herein defined, 
shall submit evidence of his qualifications and be licensed as hereinafter 
provided; and it shall be unlawful for any person to practice or offer to 
practice log scaling where the scaled quantities derived from such scaling 
shall be used for commercial purposes in this state, unless such person has 
been duly licensed under the provisions of this act, or is an apprentice under 
the supervision of a licensed scaler. 

History. 

1969, ch. 91, § 1, p. 305; am. 1979, ch. 303, 
§ 1, p. 822; am. 1998, ch. 87, § 1, p. 297. 

STATUTORY NOTES 



Prior Laws. prised S.L. 1967, ch. 328, §§ 1 to 7, p. 962, 

Former §§ 38-1201 to 38-1207, which com- were repealed by S.L. 1969, ch. 91, § 25. 



71 LOG SCALING 38-1202 

Compiler's Notes. 91, which is compiled as §§ 38-1201 to 38- 

The words "this act" refer to S.L 1969, ch. 1220, 38-1221, and 38-1222. 

JUDICIAL DECISIONS 

Analysis 

Agreements. 

Measurement methods limited. 

Agreements. § 38-1202 limited the methods of measure- 

Because no optional methods of measure- ment with respect to payment for logging or 

ment are available, a writing is not required hauling logged forest products to gross weight 

for agreements relating to logging or hauling or volume. Knopp v. Nelson, 116 Idaho 

Kffl pid C 657^Ct% V p. mil' 116 343 ' " 5 P2d 657 < Ct ' A PP- 1989 >- 

Measurement Methods Limited. 

The 1979 amendments to this section and 

38-1202. Definitions. — As used in this chapter, unless the context or 
subject matter requires otherwise: 

(1) Scaler and Professional Scaler. A person who is qualified by reason of 
his knowledge of the principles of scaling acquired by professional education 
and/or practical experience, to engage in the practice of scaling forest 
products. 

(2) Scaling. The quantitative measurement of logs or other forest prod- 
ucts by means of a log rule. The term "scaling" shall include any professional 
scaling service rendered in connection with the measurement of forest 
products, or supervision of scaling when such service is rendered requiring 
the application of scaling principles and data. 

(3) Board. The Idaho board of scaling practices. 

History. 1998, ch. 87, § 2, p. 297; am. 2008, ch. 200, 

1969, ch. 91, § 2, p. 305; am. 1979, ch. 303, § 4, p. 648. 
§ 2, p. 822; am. 1991, ch. 175, § 1, p. 426; am. 

STATUTORY NOTES 

Prior Laws. introductory language, substituted "this 

Former § 38-1202 was repealed. See Prior chapter" for "this act"; redesignated former 

Laws, § 38-1206. subsections (a), (b), and (c) as (1), (2), and (3); 

and in subsection (3), substituted "Idaho 

Amendments. board of scaling practices" for "state board of 

The 2008 amendment, by ch. 200, in the scaling practices." 

JUDICIAL DECISIONS 

Decisions Under Prior Law 

Analysis 

Mandatory language. 

Measurement methods limited. 

Payment calculated on gross weight scale. 

Mandatory Language. requires payment, for forest products hauled 

The language in former subdivision (c) of and delivered, to be based on gross weight or 

this section was mandatory; accordingly, it gross volume (gross scale) and not on net 



38-1203 FORESTRY 72 

scale. Knopp v. Nelson, 116 Idaho 343, 775 Payment Calculated on Gross Weight 

P.2d 657 (Ct. App. 1989). Scale. 

Measurement Methods Limited. Former subdivision (c) of this section does 

The 1979 amendments to § 38-1201 and not prohibit a merchanta^bihty standard from 

former subsection (c) of this section limited ^mg im P°f d u P°f P roduct f W J*f* e T' 

the methods of measurement with respect to J™* P rovides that ? a ^^\ shall be calcu- 

payment for logging or hauling logged forest i ated on a T ^ oss Z ei ? ht « cale '7°^ Potta la 

Products to eross weieht or eross volume Lo SS"^g, Inc. v. Boise Cascade Corp., 112 

Knopp v NdS llieul 343^775 MdS?7 Idah ° 489 ' 733 R2d 71 ° (1987) " 
(Ct. App. 1989). 

38-1203. Idaho board of scaling practices — Members — Terms. — 

A board to be known as the "Idaho board of scaling practices" is hereby 
created in the department of lands. It shall consist of the director of the 
department of lands and five (5) members appointed by the governor from 
among nominees recommended by the organized and generally recognized 
forest industry associations or individuals representing nonindustrial pri- 
vate forest landowners provided not less than two (2) board members be 
appointed from the intermountain forest association, and not less than two 
(2) board members be appointed from the associated logging contractors of 
Idaho, inc., each association to have one (1) member from north of the 
Salmon river and one (1) member from south of the Salmon river. One (1) 
member shall be appointed to represent the interests of nonindustrial 
private forest landowners throughout the state. That person shall be chosen 
from nominees provided to the governor by the Idaho forest owner's 
association. The person representing nonindustrial private forest landown- 
ers shall own not less than one hundred (100) nor more than five thousand 
(5,000) acres of private forest land and shall not own or control a forest 
products manufacturing facility within the state. In choosing this person, 
the governor shall give preference to persons with a demonstrated history of 
selling timber or logs to a variety of purchasers and who have scaling or 
forest management experience. The members of the board shall have the 
qualifications required by section 38-1204, Idaho Code. The members of the 
board shall be appointed for a three (3) year term. Each member of the board 
shall take, subscribe and file the oath required by sections 59-401 through 
59-408, Idaho Code, before entering upon the duties of his office. On the 
expiration of the term of any member, his successor shall be appointed in 
like manner by the governor for a term of three (3) years and unexpired 
terms shall be filled for the unexpired balance of the term. 

History. 1986, ch. 330, § 1, p. 812; am. 1999, ch. 120, 

1969, ch. 91, § 3, p. 305; am. 1972, ch. 114, § 1, p. 357; am. 2008, ch. 200, § 1, p. 645. 
§ 1, p. 229; am. 1974, ch. 17, § 20, p. 308; am. 

STATUTORY NOTES 

Cross References. Amendments. 

Director of department of lands, § 58-105. The 2008 amendment, by ch. 200, in the 

section catchline and in the first sentence, 
Prior Laws. substituted "Idaho board of scaling practices" 

Former § 38-1203 was repealed. See Prior for "state board of scaling practices"; and in 
Laws, § 38-1201. the second sentence, substituted "the inter- 



73 LOG SCALING 38-1207 

mountain forest association" for "the Idaho For farther information about the Idaho 

forest industry council." forest owners association, see httpill 

Compiler's Notes. idahoforestowners.org. 

For further information about the inter- Effective Date s. 

mountain forest association, see httpill , ro T irkrTO . 11>4 ., , ,, , 

ifia com Section 2 of S.L. 1972, ch. 114 provided that 

For further information about the associ- the act should take effect on and after July 1, 
ated logging contractors, inc., see httpill 1972. 
www. idahologgers. com . 

38-1204. Qualifications. — Appointive members of the board shall be 
citizens of the United States and residents of this state, and they shall have 
been regularly engaged in the timber products industry for at least five (5) 
years, and at least two (2) of whom shall have had experience in or 
knowledge of the practice of scaling. 

History. 

1969, ch. 91, § 4, p. 305; am. 2008, ch. 201, 
§ 1, p. 649. 

STATUTORY NOTES 

Prior Laws. Amendments. 

Former § 38-1204 was repealed. See Prior The 2008 amendment, by ch. 201, inserted 
Laws, § 38-1201. "or knowledge of" near the end of the section. 

38-1205. Compensation. — Each member of the board shall be com- 
pensated as provided in section 59-509(g), Idaho Code. 

History. § 1, p. 841; am. 1980, ch. 247, § 31, p. 582; 

1969, ch. 91, § 5, p. 305; am. 1979, ch. 311, am. 1986, ch. 330, § 2, p. 812. 

STATUTORY NOTES 

Prior Laws. 

Former § 38-1205 was repealed. See Prior 
Laws, § 38-1201. 

38-1206. Removal — Vacancies. — The governor may remove any 
member of the board for misconduct, incompetency, neglect of duty, or for 
any other sufficient cause. Vacancies in the membership of the board shall 
be filled for the unexpired term by appointment by the governor as provided 
in section 38-1203 [, Idaho Code]. 

History. 

1969, ch. 91, § 6, p. 305. 

STATUTORY NOTES 

Prior Laws. compiler to conform to the statutory citation 

Former § 38-1206 was repealed. See Prior style. 
Laws, § 38-1201. 
Compiler's Notes. 

The bracketed insertion was added by the 

38-1207. Meetings — Officers — Quorum. — The board shall hold a 



38-1208 FORESTRY 74 

meeting within thirty (30) days after its members are first appointed and 
thereafter shall hold at least two (2) regular meetings each year. The rules 
may provide for such additional regular meetings and for special meetings. 
Notice of all meetings shall be given as may be provided in the rules. The 
director of the department of lands shall be chairman of the Idaho board of 
scaling practices and the board shall annually elect a vice-chairman and a 
secretary, who shall be members of the board. Four (4) members shall 
constitute a quorum. 

History. 1979, ch. 311, § 2, p. 841; am. 2003, ch. 95, 

1969, ch. 91, § 7, p. 305; am. 1970, ch. 185, § 1, p. 280; am. 2008, ch. 200, § 5, p. 648. 
§ 1, p. 534; am. 1974, ch. 17, § 21, p. 308; am. 

STATUTORY NOTES 

Cross References. Amendments. 

Director of department of lands, § 58-105. The 2008 amendment, by ch. 200, substi- 

Prior Laws tuted "Idaho board of scaling practices" for 

Former § 38-1207 was repealed. See Prior " state board of scalin S P^ctices". 
Laws, § 38-1201. 

38-1208. Adoption of rules and seal — Maintenance of office — 
Hearings — Penalties for contempt. — The board shall have the power 
to adopt and amend rules and regulations as provided in chapter 52, title 67, 
Idaho Code, and such rules and regulations, not inconsistent with the 
constitution and laws of this state, which may be reasonably necessary for 
the proper performance of its duties and the administration of the act. It 
shall adopt and have an official seal. It shall have power to hire employees, 
provide and equip an office as may be reasonably necessary for the proper 
performance of its duties. 

The board shall have the power and duty to administer provisions of this 
act and may under the hand of its chairman and the seal of the board, 
subpoena witnesses and compel their attendance, and may require the 
production of books, papers, and other documents in any case or proceeding 
involving the revocation or suspension of a license issued under authority of 
this act or the practice or offer to practice scaling without a license in the 
state of Idaho. Any member of the board may administer oaths or 
affirmations to witnesses appearing before the board. If any person shall 
refuse to obey any subpoena so issued, or shall refuse to testify or produce 
any books, papers, or documents, the board may present its petition to the 
district judge of the district in which the witness may be found, setting forth 
the proceedings theretofore taken by the board to subpoena the witness and 
the failure of the witness to attend and briefly stating the subject matter 
upon which the testimony of the witness is required by the board; there- 
upon, such district judge may cause an order to be issued, requiring such 
witness to appear before the board to testify and to produce such books, 
papers and other documents as may be deemed necessary and pertinent by 
the board. Any person failing or refusing to obey such order shall be 
punished as for contempt of court, and any person failing to obey the 
subpoena of the board shall be guilty of a misdemeanor and shall be 
punished accordingly. 



75 LOG SCALING 38-1209 

History. 

1969, ch. 91, § 8, p. 305; am. 1970, ch. 185, 
§ 2, p. 534. 

STATUTORY NOTES 

Cross References. The term "this act", used twice in the first 

Contempt, § 7-601 et seq. sentence in the second paragraph, refers to 

Compiler's Notes. S.L. 1970, ch. 185, which is codified as §§ 38- 

The term "this act" at the end of the first 1207 to 38-1209, 38-1215, 38-1218, and 38- 

sentence in the first paragraph refers to S.L. 1222. Probably the reference should be to 

1969, ch. 91, which is codified as §§ 38-1201 «this chapter", being chapter 12, title 38, 

to 38-1220, 38-1221, and 38-1222. Probably Idaho Co( f e 

the reference should be to "this chapter", 

being chapter 12, title 38, Idaho Code. 

38-1209. Levy of assessment — Budget — Hearing — Funds — 
Bond of secretary — Salary. — (a) The board is hereby authorized and 
directed to levy an assessment on the scale of all forest products harvested 
within the state of Idaho in an amount not to exceed twenty cents (20c0 per 
thousand (1,000) board feet or twelve cents (12c0 per cunit, and no such 
assessment shall be levied more than once on any forest product except as 
herein expressly provided. The board shall set times and places for its 
meetings and shall hold not less than two (2) meetings in each calendar 
year. The board shall designate a meeting date on which a budget shall be 
adopted and assessment shall be levied. Notice of such meeting shall be 
given thirty (30) days prior thereto in a newspaper of general circulation 
throughout the state. The board shall designate and levy an assessment as 
herein provided to raise moneys necessary to fund operations of the board 
and the state scaling program established by this chapter based upon the 
budget adopted and notice of such levy shall be given in the notice of the 
budget. The budget and assessment shall become effective upon adoption by 
the board. In the event a written request is made therefor by any interested 
person within thirty (30) days after notice of the budget and assessment has 
been published, the board shall set a time and place for a hearing at which 
any person may submit recommendations for changes in the budget and the 
assessment. Thereafter the board shall either confirm or modify the budget 
and assessment and cause notice of such action to be published in a 
newspaper of general circulation throughout the state within ten (10) days 
after such action. If the budget or the assessment is modified, the modifi- 
cation shall become effective upon publication. Such hearing shall be held 
not later than thirty (30) days after receipt of a written request therefor. 

(b) The assessment herein provided shall be levied against, and paid by 
both, the timber owner and the timber purchaser, provided that no assess- 
ment shall be levied against the timber owner on forest products harvested 
from lands owned by the United States of America or the state of Idaho. Said 
assessment shall be levied twice in an equal amount, once against the 
timber owner and once against the timber purchaser. The term "purchaser" 
as used herein shall also include the owner of the timber where the owner 
processes or utilizes the forest products in its operations or where the owner 
sells forest products outside the state of Idaho and the forest products are 
scaled within the state of Idaho, provided that the assessment provided in 



38-1209 FORESTRY 76 

this chapter shall not be levied against the United States of America, nor the 
state of Idaho, nor any unit nor agency thereof. The timber purchaser shall 
withhold any assessment money owed by the timber owner and said money 
so withheld shall be paid to the board. All assessment money shall be 
transmitted by the timber purchaser to the board on or before the twentieth 
day of each month for all timber harvested during the previous month. 

(c) The secretary of the board shall receive and account for all moneys 
derived under the provisions of this act, and shall pay the same monthly to 
the state treasurer, who shall keep such moneys in a separate account to be 
known as the "state scaling account," which is hereby created in the state 
treasury. Such account shall be kept separate and apart from all other 
moneys in the treasury, and shall be paid out only on approval of the board. 
All moneys in the "state scaling account" are hereby continually appropri- 
ated for the use of the board. The board may establish, maintain and use a 
rotary fund as provided by state law. The secretary of the board shall give a 
surety bond to the state in such sum as the board may determine. The 
premium on said bond shall be regarded as a proper and necessary expense 
of the board, and shall be paid out of the "state scaling account." The 
secretary of the board shall receive such salary as the board shall determine 
in addition to the compensation and expenses provided in section 38-1205, 
Idaho Code. The board may employ such clerical or other assistants as are 
necessary for the proper performance of its work, and may make expendi- 
tures of this account for any purpose which in the opinion of the board is 
reasonably necessary for the proper performance of its duties under this act. 
All warrants on said "state scaling account" shall be drawn by the state 
controller on vouchers by the board and the state board of examiners. 

History. 1991, ch. 175, § 2, p. 426; am. 1993, ch. 130, 

1969, ch. 91, § 9, p. 305; am. 1970, ch. 185, § 1, p. 325; am. 1994, ch. 180, § 68, p. 420; 

§ 3, p. 534; am. 1979, ch. 311, § 3, p. 841; am. am . 2 005, ch. 29, § 1, p. 140; am. 2010, ch. 91, 

1980, ch. 66, § 1, p. 136; am. 1987, ch. 196, § 1 p 176 
§ 1, p. 408; am. 1989, ch. 242, § 1, p. 590; am. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

State board of examiners, § 67-2001 et seq. The words "this act" refer to S.L. 1969, ch. 

State controllers, § 67-1001 et seq. 91> whkh ig compiled as §§ 38 . 1201 to 38 _ 

Amendments. 1220, 38-1221, and 38-1222. 

The 2010 amendment, by ch. 91, in the first 

sentence in subsection (a), substituted "and Effective Dates. 

no such assessment shall be levied" for "pro- Section 241 of S.L. 1994, ch. 180 provided 



that such act should become effective on and 



vided that no such assessment shall be lev- 
ied," and added the exception; and in subsec- 
tion (b), in the first sentence, inserted "both, after the first Monday in January, 1995 [Jan- 
the timber owner and" and "timber," and uary 2, 1995] if the amendment to the Con- 
added the proviso, added the second sentence, stitution of Idaho changing the names of the 
in the third sentence, inserted "nor the state state auditor to state controller [1994 S.J.R. 
of Idaho," added the fifth sentence, and in the No. 109, p. 1493] was adopted at the general 
last sentence, substituted "All assessment election held on November 8, 1994. Since such 
money shall be transmitted by the timber amendment was adopted, the amendment to 
purchaser to the board" for "The assessment this section by § 68 of S.L. 1994, ch. 180 
shall be transmitted to the board." became effective January 2, 1995. 



77 LOG SCALING 38-1212 

38-1210. Record of proceedings — Register of applications for 
registration — Annual report to governor. — The board shall keep a 
record of its proceedings and a register of all applications for registration, 
which register shall show (a) the name, age and residency of each applicant; 
(b) the date of the application; (c) the place of business of such applicant; (d) 
his qualifications as a scaler; (e) whether the applicant was rejected; (f) 
whether a certificate of registration was granted; (g) the dates of the action 
of the board; and (h) such other information as may be deemed necessary by 
the board. 

The records of the board shall be prima facie evidence of the proceedings 
of the board set forth therein, and a transcript thereof, duly certified by the 
secretary of the board under seal, shall be admissible in evidence with the 
same force and effect as if the original were produced. Annually the board 
shall submit to the governor a report of its transactions of the preceding 
year, and shall also transmit to him a complete statement of the receipts and 
expenditures of the board, attested by affidavits of its chairman and its 
secretary. 

History. 

1969, ch. 91, § 10, p. 305. 

38-1211. Roster of licensed scalers. — A roster showing the names 
and places of business of all licensed scalers shall be published by the 
secretary of the board during the month of December of each year. Copies of 
this roster shall be mailed to each person so registered, and furnished to the 
public upon request. 

History. 

1969, ch. 91, § 11, p. 305; am. 1991, ch. 30, 
§ 7, p. 58. 

STATUTORY NOTES 

Compiler's Notes. secretary of state may transfer those docu- 

Section 16 of S.L. 1991, ch. 30 read "DIS- ments to the state historical library if it is 

POSITION OF RECORDS, (a) Whenever this determined that they have historical signifi- 

act has struck a requirement for filing a type cance, and otherwise may destroy them, 

of document with the secretary of state which "(c) Whenever this act has transferred the 

was duplicated by filing with another state place of filing for a type of document from the 

agency, the secretary of state may destroy secretary of state to another agency, the sec- 

those documents in his files. retary of state and the head of the other 

"(b) Whenever this act has struck a re- agency may thereafter agree to transfer those 

quirement for filing a type of document with documents filed before the effective date of 

the secretary of state which was not dupli- this act to the agency which has acquired 

cated by filing with another state agency, the filing responsibility." 

38-1212. Applicants eligible for license. — Except as herein other- 
wise expressly provided, no license shall be issued until an applicant has 
successfully passed an examination given by or under the supervision of the 
board, nor shall a license be issued to an applicant having habits or 
character that would justify revocation or suspension of his certificate. 

Each applicant must furnish minimum evidence that he is qualified to 
take the examination as required by this act. In addition the applicant must 



38-1213 FORESTRY 78 

furnish evidence satisfactory to the board that the applicant possesses 
knowledge and skill of a character satisfactory to the board and indicating 
that the applicant is competent to practice scaling. 

Any person having the necessary qualifications prescribed in this act to 
entitle him to be licensed as a log scaler shall be eligible for such registration 
although he may not be practicing his profession at the time of making his 
application. 

History. 

1969, ch. 91, § 12, p. 305. 

STATUTORY NOTES 

Compiler's Notes. 91, which is compiled as §§ 38-1201 to 38- 

The words "this act" refer to S.L. 1969, ch. 1220, 38-1221, and 38-1222. 

38-1213. Application forms — Fee. — Applications for registration 
shall be on forms prescribed and furnished by the board. The application 
shall be made under oath, and shall show the applicant's education, 
experience and a detailed summary of his technical work; and the applicant 
shall furnish not less than three (3) references. 

The registration fee for professional scalers shall be twenty-five dollars 
($25.00) which shall accompany the application for examination. 

History. 

1969, ch. 91, § 13, p. 305; am. 1986, ch. 330, 
§ 3, p. 812. 

38-1214. Examinations — Certificate of registration. — Examina- 
tions shall be held at such times and places as the board shall determine. 
Examinations shall be required on fundamental scaling subjects. 

The scope of the examination shall be prescribed by the board with special 
emphasis to the applicant's ability to perform scaling. A candidate failing his 
first examination may apply for re-examination at any regular examination 
time without filing a new application and shall be entitled to such re- 
examination on payment of an additional fee of twenty-five dollars ($25.00). 
A candidate who fails on re-examination must file a new application before 
he can again be admitted to examination, and such new application shall not 
be filed prior to thirty (30) days following the date of the last examination 
taken by the applicant. 

The board shall issue a certificate of registration upon payment of 
registration fee as provided for in this act, to any applicant who, in the 
opinion of the board, has satisfactorily met all of the requirements of this 
act. Certificates of registration shall show the full name of the registrant, 
shall give a serial number, and shall be signed by the chairman and the 
secretary of the board under seal of the board. 

The issuance of a certificate of registration by the board shall be prima 
facie evidence that the person named therein is entitled to all the rights and 
privileges of a registered professional log scaler and is licensed to scale 
under the act. 



79 LOG SCALING 38-1215 

History. 

1969, ch. 91, § 14, p. 305; am. 1986, ch. 330, 
§ 4, p. 812. 

STATUTORY NOTES 

Compiler's Notes. 91, which is compiled as §§ 38-1201 to 38- 

The words "this act" refer to S.L. 1969, ch. 1220, 38-1221, and 38-1222. 

38-1215. Checkscalers — Appointment — Checkscaling criteria 
— Report — Bond. — The director of the department of lands shall, with 
approval of the board, appoint such qualified licensed scalers as 
checkscalers as may be needed to perform checkscaling within the state. 
Checkscalers employed by the state of Idaho shall be nonclassified employ- 
ees, and shall be exempt from the provisions of chapter 53, title 67, Idaho 
Code. Criteria for conducting such checkscaling and a minimum number of 
logs and/or volume to be considered adequate for a valid checkscale shall be 
determined by the board, and shall guide the appointed scaler in perfor- 
mance of his checkscaling duties. The cost of all checkscales other than in 
the regular course of the checkscaler's duties shall be paid by the person 
requesting the same or by the party in error where the checkscaler finds and 
determines scaling error outside the allowable limits set by the board. All 
checkscaling costs shall be determined by using the costs of checkscaling at 
the time of request as determined by the board. The checkscaler shall make 
a report of his findings to the board within a reasonable time after each 
checkscale and said report shall be accepted as prima facie evidence of the 
facts stated in such report. Any person directly affected by said report shall 
be entitled to receive a copy of said report as soon as the checkscale has been 
completed. 

All checkscalers appointed by the board shall obtain and execute a bond 
to the board for the benefit of those businesses and/or persons using the 
services of the checkscaler covering the performance of his checkscaling 
duties, which bond shall be in the sum of one thousand dollars ($1,000), 
executed by a qualified surety, duly authorized to do business in this state, 
upon the condition that said applicant, if said bond be issued to him, shall 
conduct his checkscaling duties without fraud or fraudulent misrepresen- 
tation and will faithfully perform his duties as a checkscaler for those 
persons using his services; said bond to be reissued annually on or before the 
1st day of July each year, and said bond shall be filed with the board. 

The premium on said checkscalers' bonds shall be regarded as a proper 
and necessary expense of the board, and shall be paid out of the "state 
scaling account." 

History. § 4, p. 534; am. 1974, ch. 17, § 22, p. 308; am. 

1969, ch. 91, § 16, p. 305; am. 1970, ch. 185, 1979, ch. 139, § 1, p. 435. 



38-1216 FORESTRY 80 

STATUTORY NOTES 

Cross References. act should be in full force and effect on and 

Director of department of lands, § 58-105. after July 1, 1974. 

State sealing account, § 38-1209. 
Effective Dates. 

Section 75 of S.L. 1974, ch. 17 provided the 

JUDICIAL DECISIONS 

Cited in: Jones v. State Bd. of Medicine, 97 
Idaho 859, 555 P.2d 399 (1976). 

38-1216. Apprenticeship certificates — Temporary permits. — 

The board shall establish and prescribe the criteria and basis for issuing 
apprenticeship certificates and for issuing temporary permits; provided, 
however, that an apprentice shall be authorized to scale only under the 
direct supervision of a licensed scaler and temporary permits may be issued 
only where there are no available scalers in the area and the surrounding 
circumstances warrant the issuance of a temporary permit. Temporary 
permits may be issued for such time periods and at such fee as may be 
determined by the board, provided, however, that a temporary permit shall 
not be issued for a period of time in excess of three (3) months. Apprentice- 
ship certificates shall require the apprentice to scale as an apprentice for a 
period of ninety (90) working days and at the expiration of said ninety (90) 
day period to take the licensed scalers examination as in this act provided. 

History. 

1969, ch. 91, § 17, p. 305. 

STATUTORY NOTES 

Compiler's Notes. 91, which is compiled as §§ 38-1201 to 38- 

The words "this act" refer to S.L. 1969, ch. 1220, 38-1221, and 38-1222. 

38-1217. Expiration of certificate of registration — Renewal — 
Fees. — Certificates of registration shall expire two (2) years from the last 
day of June following their issuance or renewal and shall become invalid on 
that date unless renewed. 

As a condition of renewal, a person shall be required to pass an 
examination as established by the board and pay a renewal fee of twenty- 
five dollars ($25.00). 

History. 

1969, ch. 91, § 18, p. 305; am. 1979, ch. 311, 
§ 4, p. 841; am. 1986, ch. 330, § 5, p. 812. 

38-1218. Revocation or suspension of certificate. — The board 
shall have power to (1) revoke the certificate of registration or, (2) to suspend 
the certificate of registration for a period of time not exceeding two (2) years, 
of any registrant who is found guilty of: 

(a) The practice of any fraud or deceit in obtaining a certificate of 
registration; 



81 LOG SCALING 38-1220 

(b) Gross negligence, incompetency, habitual intemperance, insanity, 
conviction of a felony, moral turpitude, or misconduct in the practice of 
professional scaling as a registered professional scaler. 

Any person may prefer charges, based on any of the above grounds, 
against any registrant. Such charges shall be in writing, and shall be sworn 
to by the person making them and shall be filed with the secretary of the 
board. 

All charges, unless dismissed by the board as unfounded or trivial, shall 
be heard by the board as soon as possible but not to exceed three (3) months 
after the date on which they shall have been preferred. 

The time and place for said hearing shall be fixed by the board and a copy 
of the charges, together with a notice of the time and place of hearing, shall 
be personally served on, or mailed to the last known address of, such 
registrant, at least thirty (30) days before the date fixed for the hearing. At 
any hearing, the accused registrant shall have the right to appear person- 
ally and by counsel, to cross-examine witnesses in his own defense. 

If, after such hearing, three (3) or more members of the board vote in favor 
of finding the accused guilty, the board shall revoke or suspend, as herein 
provided, the certificate of registration of such registered professional scaler. 

In addition to the foregoing, provisions contained in chapter 52, title 67, 
Idaho Code, shall also apply. 

History. 

1969, ch. 91, § 19, p. 305; am. 1970, ch. 185, 
§ 5, p. 534. 

38-1219. Reissuance or reinstatement. — The board, for reasons it 
may deem sufficient, may reissue or reinstate a certificate of registration to 
any person whose certificate has been revoked or suspended, provided three 
(3) or more members of the board vote in favor of such reissuance or 
reinstatement. A new certificate of registration, to replace any certificate 
revoked, lost, destroyed or mutilated, may be issued, subject to the rules of 
the board, and upon payment of such reasonable charge therefor as shall be 
fixed by the board to cover the estimated cost of investigation and such 
reissuance, but not exceeding twenty-five dollars ($25.00) in any case. 

History. 

1969, ch. 91, § 20, p. 305; am. 1979, ch. 311, 
§ 5, p. 841. 

38-1220. Scaling methods used. — (a) The method of scaling the 
various forest products for commercial purposes shall be in accordance with 
the board's administrative rules. 

(b) For the purpose of payment for logging or hauling logged forest 
products only, forest products shall be measured by gross weight, or by gross 
volume converted to gross decimal "C" or gross cubic volume. 

(c) Forest products scaled or otherwise measured by or for any agency of 
the United States government shall not be affected by this act. The licensing 
and bonding provisions of this act do not apply to any person measuring logs 



38-1220A FORESTRY 82 

for any agency of the United States government, unless such agency so 
elects. 
(d) Measurement may be determined by a sampling process. 

History. 

1969, ch. 91, § 21, p. 305; am. 1979, ch. 311, 
§ 6, p. 841; am. 1998, ch. 87, § 3, p. 297. 

STATUTORY NOTES 

Compiler's Notes. [ch. 303] as amended, First Regular Session, 

The words "this act" refer to S.L. 1969, ch. Forty-fifth Idaho Legislature, shall be disre- 

91, which is compiled as §§ 38-1201 to 38- gar ded by the Idaho Code Commission, and 

1220, 38-1221, and 38-1222. the amendments to Section 38-1220, Idaho 

Section 7 of S.L. 1979, ch. 311 read: "The Code, as herein enacted, shall be the only 

amendments to Section 38-1220, Idaho Code, amendments compiled." 

as made by Section 3 of Senate Bill No. 1108, 

JUDICIAL DECISIONS 

Writing Not Required. for agreements relating to logging or hauling 

Because no optional methods of measure- logged forest products. Knopp v. Nelson, 116 
ment are available, a writing is not required Idaho 343, 775 P.2d 657 (Ct. App. 1989). 

38- 1220 A. Inspection — Investigation — Violations — Enforce- 
ment — Penalty. — (a) The chairman of the Idaho board of scaling 
practices shall cause investigations to be made upon the request of the board 
or upon receipt of information concerning an alleged violation of this chapter 
or of any rule, order or license issued or promulgated thereunder, and may 
cause to be made such other investigations as the chairman shall deem 
advisable. 

(b) The chairman or the chairman's designee shall have the authority to: 

(1) Conduct a program of continuing surveillance and of regular or 
periodic inspection of log scaling sites. 

(2) Enter at all reasonable times upon any private or public property for 
the purpose of inspecting or investigating to ascertain possible violations 
of this chapter or of any rule, order or license issued or promulgated 
thereunder. 

(c) Whenever the chairman determines that any person or legal entity is 
in violation of any provisions of this chapter or any rule, order or license 
issued or promulgated pursuant to this chapter, the chairman may initiate 
a civil enforcement action through the attorney general and/or a criminal 
action through the prosecuting attorney as provided in section 38-1221, 
Idaho Code. Civil enforcement actions shall be commenced and prosecuted 
in the district court in and for the county in which the alleged violation 
occurred, and may be brought against any person or legal entity who is 
alleged to have violated any provisions of this chapter or any rule, order or 
license which has become effective pursuant to this chapter. Such action 
may be brought to compel compliance with any provisions of this chapter or 
any rule, order or license issued or promulgated hereunder and for any relief 
or remedies authorized in this chapter. Except as provided in section 
38-1218, Idaho Code, the chairman shall not be required to initiate or 
prosecute an administrative action before initiating a civil enforcement 
action. 



83 LOG SCALING 38-1221 

(d) Any person or legal entity determined in a civil enforcement action to 
have violated any provision of this chapter or any rule, order or license 
issued or promulgated pursuant to this chapter shall be liable for a civil 
penalty not to exceed five thousand dollars ($5,000) per violation or five 
hundred dollars ($500) for each day of a continuing violation, whichever is 
greater. The method of recovery of said penalty shall be by a civil enforce- 
ment action in the district court in and for the county where the violation 
occurred. All civil penalties collected under this chapter shall be paid into 
the state scaling account. 

(e) In addition to such civil penalties, any person or legal entity who has 
been determined to have violated the provisions of this chapter or any rule, 
order or license issued or promulgated pursuant to this chapter, shall be 
liable for any expense, including reasonable attorney's fees, incurred by the 
state in enforcing this chapter. 

(f) No action taken pursuant to the provisions of this chapter shall relieve 
any person or legal entity from any civil action and damages that may exist 
for damage resulting from any violation of this chapter or any rule, order or 
license issued or promulgated thereunder. 

History. § 4, p. 822; am. 1986, ch. 243, § 1, p. 660; am. 

I.C., § 38-1220A, as added by 1979, ch. 303, 2008, ch. 200, § 6, p. 648. 

STATUTORY NOTES 

Cross References. out the section, substituted "this chapter" for 

Attorney general, § 67-1401 et seq. "this act" and deleted "regulation" following 

State scaling account, § 38-1209. "rule"; and in subsection (a), substituted 

"Idaho board of scaling practices" for "state 



Amendments. 

The 2008 amendment, by ch. 200, through 



board of scaling practices' 



38-1221. Commencement of civil enforcement actions — Crimi- 
nal actions and penalties authorized — Duties of attorney general 
and prosecuting attorneys. — (a) Upon request of the board or the 
chairman, it shall be the duty of the attorney general to institute and 
prosecute civil enforcement actions as provided in section 38-1220A, Idaho 
Code. In addition, when deemed by the chairman to be necessary, the 
chairman may retain private counsel to institute and prosecute civil 
enforcement actions as provided in section 38-1220A, Idaho Code. 

(b) In addition to the above, any person who shall practice, or offer to 
practice log scaling in this state without being licensed, having a temporary 
permit or being an apprentice, in accordance with the provisions of this act 
or any rule, regulation, order or license issued or promulgated thereunder, 
or any person who shall attempt to use an expired or revoked certificate of 
registration or practice at any time during a period the board has suspended 
or revoked his certificate of registration, or any person who shall violate any 
of the provisions of this act or any rule, regulation, order or license issued or 
promulgated thereunder, shall be guilty of a misdemeanor, and shall, upon 
conviction, be sentenced to pay a fine of not less than one hundred dollars 
($100) nor more than five hundred dollars ($500). A prosecution for a 
misdemeanor under this chapter must be commenced by the filing of the 



38-1222 FORESTRY 84 

complaint or the finding of an indictment within two (2) years after its 
commission. 

The attorney general of this state or any assistant designated by him shall 
act as legal advisor of the board; and all criminal actions for violations of the 
provisions of this act shall be prosecuted by the prosecuting attorney of the 
county or counties in which the violations of the act may be committed. 

History. 

1969, ch. 91, § 22, p. 305; am. 1986, ch. 243, 
§ 2, p. 660; am. 1993, ch. 91, § 1, p. 218. 

STATUTORY NOTES 

Cross References. 91, which is compiled as §§ 38-1201 to 38- 

Attorney general, § 67-1401 et seq. 1220, 38-1221, and 38-1222. 

Compiler's Notes. 

The words "this act" refer to S.L. 1969, ch. 

38-1222. Appeal from checkscale to board — Appeal from board 
to court. — Any scaler, seller, user, producer, buyer, or hauler of forest 
products aggrieved by any checkscaling report may appeal the report to the 
board. The board shall hear and determine such appeal as a contested case 
as provided in chapter 52, title 67, Idaho Code. 

Any person aggrieved by any action of the board in denying, suspending, 
or revoking his license may appeal therefrom to the district court as 
provided in chapter 52, title 67, Idaho Code. 

History. 

1969, ch. 91, § 23, p. 305; am. 1970, ch. 185, 
§ 6, p. 534; am. 1993, ch. 216, § 21, p. 587. 

STATUTORY NOTES 

Compiler's Notes. any reason, such declaration shall not affect 

Section 24 of S.L. 1969, ch. 91 read: "The the validity of remaining portions of this act." 
provisions of this act are hereby declared to be 

severable and if any provisions of this act or Effective Dates. 

the application of such provision to any per- Section 26 of S.L. 1969, ch. 91 declared an 

son or circumstance is declared invalid for emergency. Approved March 7, 1969. 

CHAPTER 13 
FOREST PRACTICES ACT 

SECTION. SECTION. 

38-1301. Short title. dures — Remedies of the oper- 

38-1302. Policy of the state — Purpose of act. ator. 

38-1303. Definitions. 38-1308. Repair of damage or correction of 

38-1304. Duties of the board. unsatisfactory condition re- 

38-1305. Duties, powers of department. suiting from violation of rules. 

38-1306. Notification of forest practice. [Repealed.] 

38-1306A. Nonresident operators — Bond. 38-1309. Duty of purchaser. 

38-1306B. Requirement for operating bonds. 38-1310. Misdemeanor violations — Fines — 

38-1307. Notice of violation — Cease and Exemption. 

repair order — Stop work or- 38-1311. Enforcement of act. 

der — Enforcement proce- 38-1312. Conversion of forest land. 



85 FOREST PRACTICES ACT 38-1303 

section. protect beneficial stream uses. 

38-1313. Forest practices rehabilitation ac- [Repealed.] 

count. 
38-1314. Forest practices which cannot fully 

38-1301. Short title. — This act shall be known and may be cited as 
"The Idaho Forest Practices Act." 

History. 

1974, ch. 197, § 1, p. 1506. 

STATUTORY NOTES 

Compiler's Notes. 197, which is compiled as §§ 38-1301 to 38- 

The words "this act" refer to S.L. 1974, ch. 1306 and 38-1309 to 38-1312. 

38-1302. Policy of the state — Purpose of act. — (1) Recognizing 
that federal, state and private forest lands make a vital contribution to 
Idaho by providing jobs, products, tax base, and other social and economic 
benefits, by helping to maintain forest tree species, soil, air and water 
resources, and by providing a habitat for wildlife and aquatic life, it is the 
public policy of the state to encourage forest practices on these lands that 
maintain and enhance those benefits and resources for the people of the 
state of Idaho. 

(2) To encourage uniform forest practices implementing the policy of this 
chapter, and to provide a mechanism for harmonizing and helping it 
implement and enforce laws and rules relating to federal, state and private 
forest land, it is the purpose of this chapter to vest in the board authority to 
adopt rules designed to assure the continuous growing and harvesting of 
forest tree species and to protect and maintain the forest soil, air, water 
resources, wildlife and aquatic habitat. 

(3) No unit of local government shall enact any ordinance, rule or 
resolution which purports to regulate forest practices on the forest land in 
this state and which conflicts with any provision of this chapter. 

History. 244, § 1, p. 595; am. 1992, ch. 259, § 1, p. 

1974, ch. 197, § 2, p. 1506; am. 1991, ch. 752. 

STATUTORY NOTES 

Effective Dates. 

Section 2 of S.L. 1992, ch. 259 declared an 
emergency. Approved April 8, 1992. 

38-1303. Definitions. — Unless the context requires otherwise, in this 
chapter: 

(1) "Forest practice" means (a) the harvesting of forest tree species; (b) 
road construction associated with harvesting of forest tree species; (c) 
reforestation; (d) use of chemicals or fertilizers for the purpose of growing or 
managing forest tree species; (e) the management of slashings resulting 
from harvest, management or improvement of forest tree species; or (f) the 



38-1303 FORESTRY 86 

prompt salvage of dead or dying timber or timber that is threatened by 
insects, disease, windthrow, fire or extremes of weather. 

(2) "Forest land" means federal, state and private land growing forest 
tree species which are, or could be at maturity, capable of furnishing raw 
material used in the manufacture of lumber or other forest products. The 
term includes federal, state and private land from which forest tree species 
have been removed but have not yet been restocked, but it does not include 
land affirmatively converted to uses other than the growing of forest tree 
species. 

(3) "Operator" means a person who conducts or is required to conduct a 
forest practice. 

(4) "Harvesting" means a commercial activity related to the cutting or 
removal of forest tree species to be used as a forest product. A commercial 
activity does not include the cutting or removal of forest tree species by a 
person for his own personal use. 

(5) "Rules" means rules adopted by the board pursuant to section 38- 
1304, Idaho Code. 

(6) "Landowner" means a person, partnership, corporation, or association 
of whatever nature that holds an ownership interest in forest land, includ- 
ing the state and federal government. 

(7) "Timber owner" means a person, partnership, corporation, or associ- 
ation of whatever nature, other than the landowner, that holds an owner- 
ship interest in forest tree species on forest land. 

(8) "Forest regions" means two (2) regions of forest land, one (1) region 
being north of the Salmon River and one (1) being south of the Salmon River. 

(9) "Director" means the director of the Idaho department of lands. 

(10) "Department" means the Idaho department of lands. 

(11) "Board" means the Idaho board of land commissioners. 

(12) "State" means the state of Idaho or any political subdivision thereof. 

(13) "Forest practices advisory committee to the board" means that 
committee appointed by the director as provided in subsection (2)(a) of 
section 38-1305, Idaho Code. 

(14) "Contract area" means the entire acreage which is subject to a single 
contract as specified in the notification of forest practices, pursuant to 
section 38-1306, Idaho Code. 

(15) "Best management practice (BMP)" means a practice or combination 
of practices determined by the board, in consultation with the department 
and the forest practices advisory committee, to be the most effective and 
practicable means of preventing or reducing the amount of nonpoint 
pollution generated by forest practices. 

(16) "Salvage" means the timely removal of dead and dying timber or 
timber that is threatened by insects, disease or such physical elements as 
fire, windthrow, or extremes of weather, and where the removal of such 
timber will help contain insect or disease outbreaks, aid in the prevention of 
wildfire, or, over the long term, help protect such resources and values as 
wildlife, water, soils or air quality. 

(17) "Cumulative effects" means the impact on water quality and/or 
beneficial uses which result from the incremental impact of two (2) or more 
forest practices. Cumulative effects can result from individually minor but 
collectively significant actions taking place over a period of time. 



87 FOREST PRACTICES ACT 38-1304 

History. 1991, ch. 244, § 2, p. 595; am. 1991, ch. 245, 

1974, ch. 197, § 3, p. 1506; am. 1980, ch. 64, § 1, p. 598; am. 1995, ch. 352, § 2, p. 1165. 
§ 1, p. 129; am. 1989, ch. 154, § 2, p. 365; am. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Director of department of lands, § 58-105. The letters "BMP" enclosed in parentheses 

State board of land commissioners, Idaho so appeared in the law as enacted. 
Const., Art. IX, § 7 and § 58-101 et seq. 

38-1304. Duties of the board. — The board: 

(1) Shall adopt rules for forest regions establishing minimum standards 
for the conduct of forest practices on forest land. These rules shall be based 
upon the following criteria: 

(a) Provide for the harvesting of forest tree species in a manner that will 
maintain the productivity of the forest land, minimize soil and debris 
entering streams and protect wildlife and fish habitat. 

(b) Provide for road construction that will insure protection and mainte- 
nance of forest productivity, water quality and fish and wildlife habitat 
during construction and maintenance. 

(c) Provide for reforestation that will maintain a continuous growing and 
harvesting of forest tree species by describing the conditions under which 
reforestation will be required, specifying the minimum number of trees 
per acre and the maximum period of time allowed after harvesting for 
establishment of forest tree species, and requiring stabilization of soils 
which have become exposed as a result of harvesting; however, an acreage 
exemption from reforestation may be established except that on such land 
exempted within one (1) year following harvesting, some form of vegeta- 
tive cover shall be required sufficient to provide continuing soil produc- 
tivity and stabilization. 

(d) Provide for the use of chemicals or fertilizers in such a manner that 
the public health and aquatic and wildlife habitat will not be endangered 
from their handling, storage and application. 

(e) Provide for management of slashings resulting from the harvesting, 
management or improvement of forest tree species in that manner 
necessary to protect reproduction and residual stands, to reduce risk from 
fire and insects and disease, to optimize the conditions for future regen- 
eration of forest tree species, and to maintain air and water quality and 
fish and wildlife habitat. 

(f) Provide for the timely salvage logging on all forest lands of dead or 
dying timber or timber that is threatened by various physical elements. 
Rules developed pursuant to this section shall consider both the economic 
value of the timber to be salvaged, the immediate costs of the salvage 
efforts, and the long-term costs to all forest resources and values associ- 
ated with insect, disease or fire conditions which might otherwise be 
controlled by the salvage operations. The provisions of this subpart 
[paragraph] shall not apply to single contiguous forest ownerships less 
than two thousand (2,000) acres in size. Nothing in this paragraph shall 
be construed as requiring the removal of timber from private lands 
against the wishes of the private landowner. 



38-1305 FORESTRY 88 

History. 

1974, ch. 197, § 4, p. 1506; am. 1991, ch. 
245, § 2, p. 598. 

STATUTORY NOTES 

Compiler's Notes. The bracketed insertion in paragraph (l)(f) 

This section was enacted with a subsection was added by the compiler to supply the 
(1), but no subsection (2). probable intended term. 

38-1305. Duties, powers of department. — The department: 
(1) Shall administer and enforce this act; 

(2)(a) Shall, through the director, appoint a forest practices advisory 
committee to the board for the purpose of providing technical advice to the 
board in carrying out the board's powers and duties as set forth in section 
38-1304, Idaho Code. The forest practices advisory committee is composed 
of nine (9) members, three (3) residing in the north forest region and three 
(3) residing in the south forest region, and three (3) members shall be 
Idaho residents. All members of the committee shall be qualified by 
experience and/or training to provide technical advice related to forest 
practices. Of the three (3) members residing in each forest region, one (1) 
member shall be either a private landowner, a private timber owner, or 
authorized representative of the landowner or timber owner who regu- 
larly engages in forest practices; one (1) member shall be an operator; and 
one (1) member shall be a representative of the general public. Of the 
remaining three (3) members who are Idaho residents: one (1) member 
shall be qualified by training and experience as a fisheries biologist; one 
(1) member shall be a nonindustrial forest landowner; and one (1) member 
shall be an at-large member. Members of the forest practices advisory 
committee shall be appointed by the director for three (3) year terms. 
Appointments under this subsection shall be made by the director within 
sixty (60) days after the effective date of this section. If there is a vacancy, 
for any cause, the director shall make an appointment to become imme- 
diately effective for the unexpired term. Said appointee shall possess the 
same qualifications under this section as the person being replaced. The 
committee shall select a chairman from among its members. A member of 
the department of lands shall be designated by the director to serve as 
secretary, without voting power, for the committee. 

(b) Notwithstanding the terms of the committee members specified by 
subsection (2)(a) of this section, of the members first appointed to each 
such committee: 

(i) Two (2) shall serve for a term of one (1) year; 

(ii) Two (2) shall serve for a term of two (2) years; 

(iii) Three (3) shall serve for a term of three (3) years. 

(3) Shall advise and assist the board in the discharge of its duties as set 
forth in this act; 

(4) Shall achieve coordination among state agencies which are concerned 
with the forest environment; 

(5) Shall cooperate with and provide advice to landowners and timber 
owners in the management of forest lands; 

(6) May enter into cooperative agreement or contracts which may be 
necessary in the administration of this act; 



89 FOREST PRACTICES ACT 38-1306 

(7) All site-specific BMPs approved at the time of the effective date of this 
act shall remain in force and be enforced by the designated agency; 

(8) Shall develop methods for controlling watershed impacts resulting 
from cumulative effects. The department shall form a cumulative effects 
watershed cooperative including, but not limited to, state and federal land 
managing agencies and owners of industrial private forest land, to serve as 
a clearinghouse for comparing and evaluating shared watershed informa- 
tion. The director shall select an interdisciplinary task force including 
appropriate technical specialists and affected landowners and shall, in 
consultation with the task force, formulate methods for controlling cumu- 
lative effects. 

History. 595; am. 1995, ch. 352, § 3, p. 1165; am. 2004, 

1974, ch. 197, § 5, p. 1506; am. 1989, ch. ch. 264, § 1, p. 743. 
154, § 3, p. 365; am. 1991, ch. 244, § 3, p. 

STATUTORY NOTES 

Compiler's Notes. The phrase "effective date of this act" in 

The phrase "effective date of this section", subsection (7) refers to the effective date of 

in the seventh sentence in subdivision (2)(a), S.L. 1995, ch. 352, which was July 1, 1995. 

was in the original 1974 enactment of this The words "this act" refer to S.L. 1974, ch. 

section and, thus, refers to the effective date 197, which is compiled as §§ 38-1301 to 38- 

of S.L. 1974, ch. 197, which was July 1, 1975. 1306 and 38-1309 to 38-1312. 

38-1306. Notification of forest practice. — (1) Before commencing a 
forest practice, the department shall be notified as required in subsection (2) 
of this section. The notice shall be given by the operator; however, the timber 
owner or landowner satisfies the responsibility of the operator under this 
subsection. When more than one (1) forest practice is to be conducted in 
relation to harvesting of forest tree species, one (1) notice including each 
forest practice to be conducted shall be filed with the department. A 
woodland management plan prepared by the woodland foresters of the 
department or approved by the board of supervisors of a soil conservation 
district shall constitute suitable notification of a forest practice when filed 
with the department, provided the woodland management plan contains the 
information required in subsection (2) of this section. 

(2) The notification required in subsection (1) of this section shall be on 
forms prescribed and provided by the department and shall include the 
name and address of the operator, timber owner, and landowner, the legal 
description of the area in which the forest practice is to be conducted, and 
other information the department considers necessary for the administra- 
tion of the rules adopted by the board under section 38-1304, Idaho Code. 

(3) All notifications must be formally accepted by the department before 
any forest practice may begin. 

(4) The initial purchaser of ties, logs, posts, cordwood, pulpwood and 
other similar forest products which have been cut from lands within the 
state of Idaho shall make no such purchase from anyone not having a proper 
acceptance of forest practice notice. 

(5) Promptly upon formal acceptance of the notice, but not more than 
fifteen (15) days from formal acceptance of the notice, the department shall 



38-1306 FORESTRY 90 

mail a copy of the notice to whichever of the operator, timber owner, or 
landowner that did not submit the notification. The department shall make 
available to the operator, the timber owner, and landowner a copy of the 
rules. 

(6) An operator, timber owner, or landowner, whichever filed the original 
notification, shall notify the department of any subsequent change in the 
information contained in the notification within thirty (30) days of the 
change. Promptly upon receipt of notice of change, but not to exceed fifteen 
(15) days from receipt of notice, the department shall mail a copy of the 
notice to whichever of the operator, timber owner, or landowner that did not 
submit the notice of change. 

(7) The notification is valid for the same period as set forth in the 
certificate of compliance under section 38-122, Idaho Code. At the expiration 
of the notification, if the forest practice is continuing, the notification shall 
be renewed using the same procedures provided for in this section. 

(8) If the notification required by subsection (1) of this section indicates 
that at the expiration of the notification that the forest practice will be 
continuing, the operator, timber owner, or landowner, at least thirty (30) 
days prior to the expiration of the notification, shall notify the department 
and obtain a renewal of the notification. Promptly upon receipt of the 
request for renewal, but not to exceed fifteen (15) days from receipt of the 
request, the department shall mail a copy of the renewed notification to 
whichever of the operator, timber owner, or landowner that did not submit 
the request for renewal. 

(9) The department shall not accept a new forest practices notification 
from any operator having an outstanding notice of violation until the repairs 
specified pursuant to section 38-1307(2)(a), Idaho Code, have been com- 
pleted to the satisfaction of the department. 

History. ch. 216, § 22, p. 587; am. 1995, ch. 281, § l,p. 

1974, ch. 197, § 6, p. 1506; am. 1986, ch. 941; am. 1995, ch. 352, § 4, p. 1165; am. 2007, 

241, § 1, p. 653; am. 1989, ch. 154, § 4, p. ch< 90} § 18, p. 246. 
365; am. 1990, ch. 125, § 1, p. 295; am. 1993, 

STATUTORY NOTES 

Amendments. department no less than ten (10) business 
This section was amended by two 1995 acts days before the commencement of the forest 
— ch. 281, § 1 and ch. 352, § 4, both effective written agreement between the landowner 
July 1, 1995 — conflicts between these acts and/or the operator and the department con- 
are explained below. cerning implementation of the site specific 
The 1995 amendment, by ch. 281, § 1, BMPs which the department has determined 
subdivided the former subsection (2) into sub- are necessary to protect water quality in the 
sections (2), (3), (3)(a) and (b), (4), (5), and (6); affected stream segment of concern, the de- 
redesignated former subsections (3), (4), and partment shall not accept the notification 
(5) as (7), (8), and (9), respectively; and added until temporary rules have been enacted es- 
subsection (10). tablishing the site-specific BMPs." (which ch. 
The 1995 amendment, by ch. 352, § 4, in 281 made subdivision (3) (b)), and "The direc- 
subsection (2), following "forest practice is to tor shall have the authority to adopt tempo- 
be conducted,", deleted "whether the forest rary rules pursuant to chapter 52, title 67, 
practice borders a stream segment of concern" Idaho Code." (which ch. 281 made subsection 
and, following what is now subsection (3), (4)). 

deleted "If the forest practice will be con- The 2007 amendment, by ch. 90, redesig- 

ducted in an area bordering a stream segment nated former subsections (5) through (10) as 

of concern, this notice must be received by the (4) through (9). 



91 FOREST PRACTICES ACT 38-1307 

38- 1306 A. Nonresident operators — Bond. — Prior to commencing 
any forest practices, nonresident operators who do not own real property in 
Idaho shall submit to the department a bond in a form acceptable to the 
board to insure the performance of the duties of the operator under this 
chapter and any rules and regulations promulgated hereunder, in the 
amount of two hundred dollars ($200) per acre for each acre in the contract 
area, with a minimum bond of five thousand dollars ($5,000) and a 
maximum bond of fifteen thousand dollars ($15,000). 

History. 

I.C., § 38-1306A, as added by 1980, ch. 64, 
§ 2, p. 129. 

38-1306B. Requirement for operating bonds. — (1) At the direction 
of the board, the department shall require submission of an operating bond, 
before accepting a forest practices notification, from any operator who has 
repeatedly or habitually: 

(a) Operated without a valid forest practices notification as required in 
section 38-1306, Idaho Code; 

(b) Violated the terms of a stop work order issued pursuant to section 
38-1307(2)(b), Idaho Code; 

(c) Failed to apply best management practices as required by law and the 
rules promulgated under this chapter; 

(d) Willfully caused degradation to forest soils, air, or water resources; or 

(e) Failed to comply with the rules promulgated under this chapter as 
determined by the board. 

(2) The bond shall be in a form, acceptable to the board, to insure the 
performance of the duties of the operator under this chapter and any rules 
promulgated thereunder, in the amount of two hundred dollars ($200) per 
acre for each acre in the contract area included in a forest practices 
notification, with a minimum bond of five thousand dollars ($5,000) and a 
maximum bond of fifteen thousand dollars ($15,000). 

(3) If the operator is a nonresident operator this bond shall be in addition 
to the nonresident bond required pursuant to section 38-1306A, Idaho Code. 

History. 

I.C., § 38-1306B, as added by 1995, ch. 281, 
§ 2, p. 941. 

38-1307. Notice of violation — Cease and repair order — Stop 
work order — Enforcement procedures — Remedies of the operator. 

— (1) When the department determines that an operator violated any 
provision of this chapter or rule, it shall issue a notice of violation. The 
notice shall specify the nature of the violation charged and any damage or 
unsatisfactory condition resulting from the violation. 

(2) When a notice of violation is issued under this section, the depart- 
ment: 
(a) May issue an order directing the operator immediately to cease 
further violation and to commence and continue repairing the damage or 
correcting the unsatisfactory condition, hereinafter referred to as a "cease 
and repair order". 



38-1307 FORESTRY 92 

(b) If after two (2) working days from the delivery of a cease and repair 
order, the operator fails to cease further violation and to commence and 
continue repairing the damage or to enter into an agreement to repair 
pursuant to subsection (2)(d) of this section, in compliance with the order, 
the department may issue and serve an order directing the operator to 
cease all forest practices within the contract area, hereinafter referred to 
as a "stop work order". 

(c) The department may initiate the remedies set forth in subsection 
(2)(e) of this section: 

1. At any time after delivery of the stop work order, if the operator fails 
to immediately stop work in the contract area; 

2. After five (5) days from the delivery of the stop work order, if the 
operator fails to comply fully with the cease and repair order; or 

3. At any time after delivery of a notice of violation, if serious or 
irreparable damage will occur to land as a result of said violation, 
notwithstanding any other provisions of this chapter. 

(d) An operator who has been served with a cease and repair order and 
who has completed his work in and removed all of his equipment from the 
contract area, or who cannot enter upon the land to repair the damage 
because of heavy snow, flooding, or similar serious condition upon the 
land, may comply with the order by entering into an agreement with the 
department to commence and thereafter continue to repair the damage 
within sixty (60) days after repair is practicable following heavy snow, 
flooding or similar serious condition upon the land. 

(e) The department shall initiate the following remedies in accordance 
with subsection (2)(c) of this section: 

1. The department shall estimate the costs of repair of the damage and 
reasonable administrative and legal fees to be expended in obtaining a 
judgment against the operator, and shall notify the operator, timber 
owner and landowner in writing of the amount of the estimate. 

2. The county attorney for the county where the contract area is 
situated or the attorney general shall file an action to enjoin the 
operator's violations and to recover the costs of repair and administra- 
tive and legal fees and/or to foreclose a lien against the operator as set 
forth in subsection (2)(e)3 of this section. Legal fees recovered in such an 
action shall accrue to the county attorney and the attorney general 
according to the proportionate time which each has expended in 
obtaining the judgment. 

3. A priority lien shall attach to the real and personal property of the 
operator upon delivery to the operator of a stop work order for the 
amount not to exceed the estimated costs of repair and reasonable 
administrative and legal fees to be expended in foreclosing the lien. A 
written notice of the lien, containing a statement of the estimated costs 
of repair and reasonable administrative and legal fees, and the names 
of the parties against whom the lien attached, shall be certified under 
oath by the department and filed in the office of the county clerk and 
recorder of the county or counties where the real and personal property 
of the operator is located and where considered necessary to recover the 
estimated expenditures. This lien shall be perfected upon filing. This 



93 FOREST PRACTICES ACT 38-1307 

lien shall cease unless legal action is instituted within one (1) year from 
the date of filing of the notice of the lien. 

4. If the operator is a nonresident who does not own real property in 
Idaho, the department after hearing, may declare the operator's bond 
forfeited or commence legal action against the bond to recover the costs 
of repair and reasonable administrative and legal fees. 

(3) An operator dissatisfied with a stop work order shall have thirty (30) 
days after service thereof to challenge the order, without administrative 
review thereof, in a court of proper jurisdiction in the county where the 
alleged damaged land is situated. In such an action the operator shall bear 
the burden of proving that the cease and repair order and the stop work 
order are without merit or basis; or shall have ten (10) days after service 
thereof to request a hearing before the board, to challenge the merit or basis 
of either or both orders. In such an action, the operator shall bear the burden 
of proving that the cease and repair order and the stop work order are 
without merit or basis. If the board affirms the order(s), the operator may 
within thirty (30) days after the board's decision, appeal the decision to the 
district court for the county where the alleged damaged land is situated. The 
action in the district court shall be limited to appellate review. 

(4) If a nonresident operator who does not own real property in the state 
of Idaho performs forest practices without first submitting a bond in 
compliance with section 38-1306A, Idaho Code, or if an operator performs 
forest practices without first submitting notice to the department in 
compliance with section 38-1306, Idaho Code, the department may imme- 
diately commence legal action to enjoin the operator by temporary restrain- 
ing order or preliminary injunction, and evoke through the county attorney 
the misdemeanor penalties of section 38-1310, Idaho Code. The testimony 
under oath of a department employee or forester that a nonresident operator 
who does not own property in Idaho is performing forest practices without a 
bond or that an operator is performing forest practices without having first 
given notice to the department shall constitute prima facie evidence upon 
which, if unrebutted, a district court shall issue a temporary restraining 
order or a preliminary injunction against the operator, to cease all forest 
practices in the contract area until this act has been fully complied with. 

(5) Service of a notice or order under this section shall be made upon the 
operator or his agent, representative or contractor, by personal delivery or 
certified mail. 

History. 

I.C., § 38-1307, as added by 1980, ch. 64, 
§ 4, p. 129; am. 1986, ch. 241, § 2, p. 653. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Attorney general, § 67-1401 et seq. The letter "s" in parentheses in the fourth 

. sentence of subsection (3) so appeared in the 

Prior Laws. law as enacted. 

Former § 38-1307, which comprised S.L. The term "this act" in subsection (4) refers 
1974, ch. 197, § 7, p. 1506, was repealed by to S.L. 1980, ch. 64, which is codified as 

S.L. 1980, ch. 64, § 3. §§ 38-1303, 38-1306A, and this section. Prob- 



38-1308 FORESTRY 94 

ably, the reference should be to "this chapter", 
being chapter 13, title 38, Idaho Code. 

38-1308. Repair of damage or correction of unsatisfactory condi- 
tion resulting from violation of rules. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. ch. 197, § 8, p. 1506, was repealed by S.L. 

This section, which comprised S.L. 1974, 1980, ch. 64, § 3. 

38-1309. Duty of purchaser. — The initial purchaser of forest tree 
species which have been harvested from forest lands shall before making 
such purchase or contract to purchase, or accepting delivery of the same, 
must receive and keep on file a copy of the notice required by section 
38-1306, Idaho Code, relating to the harvesting practice for which the forest 
tree species are being acquired by the initial purchaser. Such notice shall be 
available for inspection upon request by the department at all reasonable 
times. 

History. 

1974, ch. 197, § 9, p. 1506. 

38-1310. Misdemeanor violations — Fines — Exemption. — (1) A 

violation of: subsections (1) through (4) of section 38-1306 or section 
38-1312, Idaho Code, an order issued under subsection (2) of section 
38-1307, Idaho Code, a rule adopted under section 38-1304, Idaho Code, or 
a material misrepresentation or false statements in the notice or notice of 
change required by section 38-1306 or section 38-1312, Idaho Code, is a 
misdemeanor. Each day's violation of an order issued under subsection (2) of 
section 38-1307, Idaho Code, is a separate offense. Each violation of section 
38-1309, Idaho Code, is a separate offense. 

(2) Fines collected under this act shall be deposited in the general 
account. 

(3) Sections 38-1306 and 38-1307, Idaho Code, do not apply to forest 
practices performed by the department on forest land owned by the state of 
Idaho, but do apply to political subdivisions thereof. 

History. 

1974, ch. 197, § 10, p. 1506; am. 1988, ch. 
211, § 1, p. 401. 

STATUTORY NOTES 

Cross References. 197, which is compiled as §§ 38-1301 to 38- 

Penalty for misdemeanor where not other- 1306 and 38-1309 to 38-1312. 

wise provided, § 18-113. 

Compiler's Notes. 
The words "this act" refer to S.L. 1974, ch. 

38-1311. Enforcement of act. — The director may delegate to any 



95 FOREST PRACTICES ACT 38-1313 

person within the department the powers and duties of peace officers to 
enforce this act. 

History. 

1974, ch. 197, § 11, p. 1506. 

STATUTORY NOTES 

Compiler's Notes. As enacted, the section heading of this 

The words "this act" refer to S.L. 1974, ch. section read, "Power of peace officers to en- 

197, which is compiled as §§ 38-1301 to 38- f orce provisions of any state forest law." , 
1306 and 38-1309 to 38-1312. 

38-1312. Conversion of forest land. — (1) This act does not prevent 
the conversion of forest land to any other use. However, conversions shall 
require the filing of a notification as required in section 38-1306, Idaho Code, 
as well as compliance with the provisions of this chapter and rules and 
regulations promulgated pursuant thereto, except for provisions relating to 
reforestation. When forest land is converted to another use, vegetative cover 
sufficient to provide continuing soil productivity and stabilization shall be 
established within one (1) year of completion of the forest practice on 
disturbed areas larger than one (1) acre, except that the director may grant 
an extension of time if weather or other conditions interfere. 

(2) The provisions of this section shall not apply to activities regulated 
under chapters 13 and 15, title 47, Idaho Code. 

History. 

1974, ch. 197, § 12, p. 1506; am. 1988, ch. 
211, § 2, p. 401. 

STATUTORY NOTES 

Compiler's Notes. Effective Dates. 

The words "this act" refer to S.L. 1974, ch. Section 14 of S.L. 1974, ch. 197, reads: "(1) 

197, which is compiled as §§ 38-1301 to 38- Except as provided in subsection (2) of this 

1306 and 38-1309 to 38-1312. secti this act is effective on July j 1975- 

Section 13 of S.L. 1974, ch. 197, read: The «, n s ™ , , , ., , f * . 

. . -,,. , ,' . j , j, i. (2) The board and the department may 

provisions of this act are hereby declared to be , ■, ,. . * . * .-. „ J 

* , , j . r . . J . - ,,. . take any action necessary prior to the effec- 

severable and if any provision of this act or ,. A / *.*> . • , £ u j 

,, y ,. f C •• + trve date of this act, including hearings and 

p . , j i j • i . j /. " adoption of rules and regulations required to 

son or circumstance is declared invalid for Q «.«ffi,« «««,,«, «f+i„- „„„+«« t 1,1 iq^c" 

, , , ,. , „ , „. , enect the purposes ot this act on July 1, 1975. 
any reason, such declaration shall not affect J 

the validity of remaining portions of this act." 

38-1313. Forest practices rehabilitation account. — There is 
hereby created in the dedicated fund in the state treasury a forest practices 
rehabilitation account, which shall be used by the department to rehabili- 
tate forest lands damaged by a forest practice that is not repaired following 
the serving of a notice of violation. The department shall recover the costs of 
repairs and reasonable administrative and legal fees in accordance with 
subsection (2)(e) of section 38-1307, Idaho Code. Costs of repairs shall be 
deposited in the forest practices rehabilitation account. 



38-1314 FORESTRY 96 

History. 

I.C., § 38-1313, as added by 1987, ch. 281, 
§ 1, p. 591. 

38-1314. Forest practices which cannot fully protect beneficial 
stream uses. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. was repealed by S.L. 1995, ch. 352, § 5, 

This section, which comprised I.C., § 38- effective July 1, 1995. 
1314, as added by 1989, ch. 154, § 5, p. 339, 

CHAPTER 14 
RIGHT TO CONDUCT FOREST PRACTICES 

SECTION. SECTION. 

38-1401. Legislative findings and intent. 38-1404. Local ordinances — Prior actions. 

38-1402. Definitions. 

38-1403. Forest practices not a nuisance — 
Exception. 

38-1401. Legislative findings and intent. — The legislature finds 
that forest practices conducted on forest land in urbanizing areas are often 
subjected to nuisance lawsuits, and that such suits encourage and even force 
the premature removal of the lands from forest uses and in some cases 
prohibit investments in forest improvements. It is the intent of the legisla- 
ture to reduce the loss to the state of its forest resources by limiting the 
circumstances under which forest practices may be deemed to be a nuisance. 
The legislature also finds that the right to conduct forest practices is a 
natural right and is recognized as a permitted use in the state of Idaho. 

History. 

I.C., § 38-1401, as added by 1989, ch. 226, 
§ 1, p. 541. 

38-1402. Definitions. — As used in this chapter: 

(1) "Forest land" means state and private land growing forest tree species 
which are, or could be at maturity, capable of furnishing raw material used 
in the manufacture of lumber or other forest products. The term includes 
state and private land from which forest tree species have been removed but 
have not yet been restocked, but it does not include land affirmatively 
converted to uses other than the growing of forest tree species. 

(2) "Forest practice" means: 

(a) The harvesting of forest tree species; 

(b) Road construction associated with harvesting of forest tree species; 

(c) Reforestation; 

(d) Use of chemicals or fertilizers for the purpose of growing or managing 
forest tree species; or 

(e) The management of slashings resulting from harvest, management or 
improvement of forest tree species. 

(3) "Improper or negligent operation" means that the forest practice is not 



97 IDAHO FOREST PRODUCTS COMMISSION 38-1404 

undertaken in conformity with federal, state and local laws and regulations, 
and adversely affects the public health and safety. 

History. 

I.C., § 38-1402, as added by 1989, ch. 226, 
§ 1, p. 541. 

38-1403. Forest practices not a nuisance — Exception. — No forest 
practices conducted on forest land or an appurtenance to it shall be or 
become a nuisance, private or public, by any changed conditions in or about 
the surrounding nonforest activities after the same has been in operation for 
more than one (1) year when the forest practice was not a nuisance at the 
time the forest practice began; provided, that the provisions of this section 
shall not apply whenever a nuisance results from the improper or negligent 
operation of any forest practice conducted on any forest land or appurte- 
nance to it. 

History. 

I.C., § 38-1403, as added by 1989, ch. 226, 
§ 1, p. 541. 

38-1404. Local ordinances — Prior actions. — Any and all ordi- 
nances of any unit of local government now in effect or hereafter adopted 
that would make the operation of any forest practice conducted on forest 
land or an appurtenance to it a nuisance in the circumstances set forth in 
this chapter are and shall be null and void; provided, however, that the 
provisions of this section shall not apply whenever a nuisance results from 
the improper or negligent operation of any forest practice on forest land or 
an appurtenance to it. Provided further, that the provisions of this section 
shall not apply whenever a nuisance results from a forest practice on forest 
land located within the corporate limits of any city on July 1, 1989, nor shall 
the provisions of this chapter affect actions commenced prior to July 1, 1989. 

History. 

I.C., § 38-1404, as added by 1989, ch. 226, 
§ 1, p. 541. 

CHAPTER 15 
IDAHO FOREST PRODUCTS COMMISSION 

SECTION. SECTION. 

38-1501. Declaration of policy. 38-1509. Limitations to the powers of the 

38-1502. Definitions. commission. 

38-1503. Forest products commission created 38-1510. Commission accepting grants, do- 

— Members. nations and gifts. 

38-1504. Qualifications of the member and 38-1511. Bonds of agents and employees. 

composition of the commis- 38-1512. Appointment of staff, duties, salary. 

sion. 38-1513. Establishment of the commission's 
38-1505. Compensation of members. office. 

38-1506. Chairman and staff of the commis- 38-1514. State not liable for acts or omissions 

sion. of the commission or of its em- 

38-1507. Meetings of the commission. ployees. 

38-1508. Duties and powers of the commis- 38-1515. Imposition of assessments and pro- 

sion. vision for late fees. 



38-1501 FORESTRY 98 

SECTION. SECTION. 

38-1516. Penalties. 38-1518. Dissolution of the commission. 

38-1517. Deposit and disbursement of funds. 

38-1501. Declaration of policy. — It is in the interest of all the people 
of Idaho that the abundant forest resources of the state be protected, and 
properly managed to produce multiple resources and values along with 
sustained yields of timber to support the economic welfare of the state. 
Because forest management, on both public and private lands, is important 
to each citizen of the state, it is the purpose by the enactment of this chapter 
to promote the economic and environmental welfare of the state by provid- 
ing a means for the collection and dissemination of information regarding 
the management of the state's public and private forest lands and the forest 
products industry. 

History. 

I.C., § 38-1501, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1502. Definitions. — As used in this chapter: 

(1) "Assessment year" means January 1 through December 31 of any 
calendar year in which the commission levies an assessment. 

(2) "Base year" means the calendar year immediately preceding the 
assessment year. 

(3) "Business entity" means a person, firm, partnership, corporation, 
association, trust or other recognized legal entity. 

(4) "Commission" means the Idaho forest products commission created by 
section 38-1503, Idaho Code. 

(5) "Financial supporter" means entities who have paid assessments 
pursuant to this chapter. 

(6) "Forest lands" means federal, state and private land growing forest 
tree species which are, or could be at maturity, capable of furnishing raw 
material used in the manufacture of lumber or other forest products. The 
term includes federal, state and private land from which forest tree species 
have been removed but have not yet been restocked, but it does not include 
land affirmatively converted to uses other than the growing of forest tree 
species. 

(7) "Forest product manufacturer" means a business entity that engages 
in the processing, cutting, fabricating or other process which converts 
timber, chips, sawdust or shavings into lumber, paper, plywood, particle 
board or other usable products for sale in commerce, provided, however, as 
used in this chapter, forest products manufacturers shall not include the 
following business entities engaged in: 

(a) The production of fence or corral posts or rails; 

(b) Producing shingles or shakes; 

(c) Producing firewood or pellets for energy; or 

(d) Producing logs which have been shaped or scribed and used in the 
construction of log structures. 

(8) "Hog fuel" means wood or wood scraps that have been shredded or 
pulverized and used by forest product manufacturers to generate energy. 



99 IDAHO FOREST PRODUCTS COMMISSION 38-1504 

(9) "Private forest lands" means forest lands not owned by the federal 
government, state government, an Indian tribe or a political subdivision of 
the state. 

History. § 1, p. 518; am. 1997, ch. 260, § 1, p. 742; am. 

I.C., § 38-1502, as added by 1992, ch. 163, 2003, ch. 101, § 1, p. 319. 

38-1503. Forest products commission created — Members. — 

(1) There is hereby created and established in the department of self- 
governing agencies the Idaho forest products commission, to be composed of 
five (5) voting members appointed by the governor from a list of names with 
at least two (2) names for each appointive office for each district submitted 
to the governor by the financial supporters of the commission in each 
district. Initial members of the commission shall serve either a three (3) or 
five (5) year term, with two (2) members of the commission serving three (3) 
year terms, and three (3) members of the commission serving five (5) year 
terms. For the initial commission members, the duration of each member's 
term shall be determined by lot. Thereafter, all commission members shall 
serve terms of three (3) years, and may be reappointed. The commission 
shall adopt rules to define the process for filling vacancies to the commission 
and to provide for determining the terms of office for all members of the 
commission after the expiration of the terms of the original members. 

(2) The governor shall also name as permanent advisory members to the 
commission, the director of the department of lands, a representative of the 
United States forest service, the dean of the University of Idaho college of 
forestry, wildlife and range sciences [college of natural resources] or the 
dean's designee, and the executive directors of the intermountain forest 
industry association and the associated logging contractors. No advisory 
member of the commission shall have a vote on the commission. 

History. 

I.C., § 38-1503, as added by 1992, ch. 163, 
§ 1, p. 518; am. 1995, ch. 255, § 1, p. 835. 

STATUTORY NOTES 

Cross References. current college name at the University of 

Department of self-governing agencies, Idaho. 

§ 67-2601 et seq. For further information about the inter- 
Director of department of lands, § 58-105. mountain forest association, see httpill 

ifia.com. 

Compiler's Notes. For further information about the associ- 

The bracketed insertion in subsection (2) ated logging contractors, inc., see httpill 

was added by the compiler to reflect the www.idahologgers.com. 

38-1504. Qualifications of the member and composition of the 
commission. — (1) Each member of the commission shall be nominated 
and appointed because of their knowledge of forest management, the forest 
products industry, or because they possess communications skills which 
would enhance the ability of the commission to carry out its duties. 
Members of the commission shall be residents of the state who derive a 
substantial part of their income from association with the forest products 



38-1505 FORESTRY 100 

industry within the state of Idaho. There shall be a total of five (5) members 
from the four (4) districts as follows: 

District 1. The counties of Boundary, Bonner and Kootenai. 

District 2. The counties of Shoshone, Benewah, Latah and Clearwater. 

District 3. Idaho county and all counties north of the Salmon river not 
heretofore named. 

District 4. Adams, Valley, Payette, Washington, Ada, Boise, Gem, and all 
other counties south of the Salmon river not heretofore named. From this 
district, the governor shall appoint two (2) members to the commission. 

(2) The governor shall assure through his appointments to the commis- 
sion that the commission membership reflects equitable representation 
from the timber growing, logging and transportation, and forest products 
manufacturing segments of the industry. The commission shall also include 
no less than one (1) member with demonstrated experience in communica- 
tions or natural resource education. 

History. 

I.C., § 38-1504, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1505. Compensation of members. — Members of the commission 
shall be compensated as provided in section 59-509(b), Idaho Code. 

History. 

I.C., § 38-1505, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1506. Chairman and staff of the commission. — The commission 
shall elect a chairman and may employ clerical or other staff who are not 
members of the commission. 

History. 

I.C., § 38-1506, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1507. Meetings of the commission. — The commission shall meet 
not less than four (4) times each year and at such other times as may be 
determined by either the chairman or a majority of the commission 
members. Any meeting may be held at any location within the state, and at 
any time. 

History. 

I.C., § 38-1507, as added by 1992, ch. 163, 
§ 1, p. 518; am. 1995, ch. 255, § 2, p. 835, 

38-1508. Duties and powers of the commission. — (1) Consistent 
with the general purposes of this chapter, the commission shall establish the 
policies to be followed in the accomplishments of such purposes. 

(2) In the administration of the provisions of this chapter, the commission 
shall, in conjunction and cooperation with other entities which represent the 
forest products industry, have the following duties, authorities and powers: 

(a) Conduct research and surveys to determine public attitudes and 



101 IDAHO FOREST PRODUCTS COMMISSION 38-1508 

levels of knowledge regarding forest management and the forest products 
industry; 

(b) Design educational campaigns and other needed efforts to provide the 
public with accurate information regarding the management of Idaho's 
forest lands and the forest products industry; 

(c) Be an advocate for the proper management of Idaho's forest lands and 
for a healthy forest products industry in the state; 

(d) Be a source of accurate and timely data regarding the forest resource 
and the forest products industry; 

(e) Make projections regarding future timber supplies, availability of 
timber, new or existing products and markets, and other biological or 
social trends which might affect forest management or the forest products 
industry in Idaho; and 

(f) Cooperate with any local, state or national organization or agency, 
whether voluntary or created by the law of any state or by national law, 
engaged in work or activities similar to the work and activities of the 
commission, and to enter into contracts and agreements with such 
organizations or agencies for carrying on a joint campaign of research, 
education and publicity. 

(3) The commission shall also have the duty, power and authority: 

(a) To take such actions as the commission deems necessary or advisable 
to stabilize and protect the forest products industry of the state and the 
health and welfare of the public; 

(b) To sue and be sued; 

(c) To enter into such contracts as may be necessary or advisable; 

(d) To appoint and employ officers, agents and other personnel, including 
experts in publicizing forest management or the forest products industry, 
and to prescribe their duties and fix their compensation; 

(e) To make use of such advertising means and methods as the commis- 
sion deems advisable and to enter into contracts and agreements for 
research and advertising within the state; 

(f) To lease, purchase or own the real or personal property deemed 
necessary in the administration of the provisions of this chapter; 

(g) To prosecute in the name of the state of Idaho any suit or action for 
collection of any tax or assessment provided for in this chapter; 

(h) To adopt, rescind, modify and amend all necessary and proper orders, 

resolutions and regulations for the procedure and exercise of its powers 

and the performance of its duties; 

(i) To incur indebtedness and carry on all business activities; and 

(j) To keep books and records and accounts of all its doings, which books, 

records, and accounts shall be open to inspection by the state controller 

and public at all times. 

History. 

I.C., § 38-1508, as added by 1992, ch. 163, 
§ 1, p. 518; am. 1994, ch. 180, § 69, p. 420. 



38-1509 FORESTRY 102 

STATUTORY NOTES 

Cross References. stitution of Idaho changing the names of the 

State controller, § 67-1001 et seq. state auditor to state controller [1994 S.J.R. 

Effective Dates. ^°* 109, P* 1493] was adopted at the general 

Section 241 of S.L. 1994, ch. 180 provided election held on November 8, 1994. Since such 

that such act should become effective on and amendment was adopted, the amendment to 

after the first Monday in January, 1995 [Jan- this section by § 69 of S.L. 1994, ch. 180 

uary 2, 1995] if the amendment to the Con- became effective January 2, 1995. 

38-1509. Limitations to the powers of the commission. — Irrespec- 
tive of such actions as may be taken by individual members of the 
commission, the commission itself shall not use any funds or other resources 
of the commission to influence the outcome of any election for public office, 
be it state or federal, or to influence the enactment or defeat of any specific 
piece of legislation; provided, however, the commission may, in the course of 
implementation of this chapter, generally and objectively inform the public 
of legislative or regulatory proposals which may affect the management of 
public or private forests in Idaho or the forest products industry. 

History. 

I.C., § 38-1509, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1510. Commission accepting grants, donations and gifts. — 

The commission may accept grants, donations and gifts of funds from any 
source for expenditure for any purpose consistent with this chapter which 
may be specified as a condition of any grant, donation or gift. All funds 
received under the provisions of this chapter shall be paid into a bank 
account in the name of the Idaho forest products commission and such 
moneys are hereby continuously appropriated and made available for 
defraying the expenses of the commission in carrying out the provisions of 
this chapter. 

History. 

I.C., § 38-1510, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1511. Bonds of agents and employees. — Any agent or employee 
appointed by the commission shall be bonded to the state of Idaho in the 
time, form, and manner as prescribed in chapter 8, title 59, Idaho Code. The 
cost of the bond is an administrative expense under this chapter. 

History. 

I.C., § 38-1511, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1512. Appointment of staff, duties, salary. — The commission 
may appoint clerical or other staff, on either a full or part time basis, who 
shall devote their time to the administration of the provisions of this 
chapter. The staff shall be paid reasonable salaries as fixed by the commis- 
sion, commensurate with their duties and experience. 



103 IDAHO FOREST PRODUCTS COMMISSION 38-1515 

History. 

I.C., § 38-1512, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1513. Establishment of the commission's office. — For the 

convenience of the majority of those most likely to be affected by the 
administration of this act, the commission shall establish and maintain an 
office within the state of Idaho. 

History. 

I.C., § 38-1513, as added by 1992, ch. 163, 
§ 1, p. 518. 

STATUTORY NOTES 

Compiler's Notes. 163, which is compiled as §§ 38-1501 to 38- 

The words "this act" refer to S.L. 1992, ch. 1518. 

38-1514. State not liable for acts or omissions of the commission 
or of its employees. — The state of Idaho is not liable for the acts or 
omissions of the commission or any member thereof or any officer, agent or 
employee thereof. 

History. 

I.C., § 38-1514, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1515. Imposition of assessments and provision for late fees. — 

(1) From and after the first day of July, 1995, the commission is hereby 
authorized to levy the following assessments: 

(a) For all forest products manufacturers, an amount no greater than fifty 
cents (50^) per thousand board feet or the equivalent thereof for all logs 
either harvested in Idaho or measured or processed by a manufacturing 
entity located in the state of Idaho, regardless of the state in which the 
logs might have been cut. For purposes of this chapter, "forest products 
manufacturers" shall include those business entities which buy timber in 
Idaho and then sell it to other persons outside the state for manufacture 
into finished products. Such business entities shall be liable for the 
assessments described in this paragraph for all timber cut within Idaho 
and then distributed to other persons outside the state. 

(b) For all business entities engaged in the harvest or transport of timber, 
logs, unfinished lumber, chips, sawdust, shavings or hog fuel in Idaho, a 
sum no greater than twenty-five dollars ($25.00) per employee, including 
single, self-employers and the individuals involved in partnerships, as 
measured by the records of the department of employment [department of 
labor] during the month of July of the preceding year, or as provided in 
subsection (2) of this section, provided, however, those business entities 
engaged solely in the harvest or transport of those exclusions to forest 
products manufacturers as set forth in subsection (7)(a), (b), (c) and (d) of 
section 38-1502, Idaho Code, shall owe no duty or assessment under this 
chapter, nor shall any assessment be levied upon forest products trans- 
ported by railroad. 



38-1516 FORESTRY 104 

(c) For business entities or persons owning more than fifty thousand 
(50,000) acres of private forest land within the state of Idaho but with no 
facilities for manufacturing forest products within the state, a sum no 
greater than sixteen and sixty-six one hundredths cents (16.66#) per each 
acre of forest land, provided, however, that this assessment shall be 
reduced by an amount equal to the assessment described in paragraph (a) 
of this subsection for all logs harvested from that land in the preceding 
calendar year and assessed in this section. Persons owning less than a 
total of fifty thousand (50,000) acres of forest land in the state shall bear 
no assessment or fee pursuant to the provisions of this subsection. 

(d) No firm or business entity shall be liable for assessments under this 
chapter in more than one (1) of the categories described in this section. In 
the event that a person, firm or business entity qualifies to pay more than 
one (1) assessment as described herein, then the greater of the assess- 
ments shall be assessed, due and payable. 

(2) In collecting assessments due the commission, the commission is 
authorized to cooperate with and coordinate its actions to collect assess- 
ments with the various efforts of Idaho board of scaling practices, the tax 
commission, the department of employment [department of labor], the 
transportation department and the department of lands to either collect 
assessments or taxes due under the provisions of this chapter or to identify 
those who may owe assessments under the provisions of this chapter. 

(3) Any person or firm who makes payment to the commission at a date 
later than that prescribed in rules set forth by the commission under this 
section may be subject to a late payment penalty as set forth by the 
commission by rule. Such penalty shall not exceed fifteen percent (15%) per 
annum on the amount due. In addition to the above penalty, the commission 
shall be entitled to recover all costs, fees, and reasonable attorney's fees 
incurred in the collection of the tax and penalty provided for in this section. 

(4) An assessment levied under this chapter shall be based upon data 
compiled from the base year. Assessments shall be paid to the commission 
according to such rules as may be adopted by the commission. 

History. 1997, ch. 260, § 2, p. 742; am. 2003, ch. 101, 

I.C., § 38-1515, as added by 1992, ch. 163, § 2, p. 319. 
§ 1, p. 518; am. 1995, ch. 255, § 3, p. 835; am. 

STATUTORY NOTES 

Cross References. in subdivision (l)(b) and subsection (2), was 

Department of land, § 58-101 et seq. reorganized as the department of labor, which 

Idaho board of scaling practices, § 38-1203. was subsequently reorganized as the depart- 

s ^^ om ° lission ' IdahoConst ' ArtVIIand ment of commerce and labor, before being 

* TkioL^fSn a*™*™™* * An-zm m reorganized in 2007 as the department of 

labor. The bracketed insertions reflect the 



Transportation department, § 40-501 et 
seq. 

Compiler's Notes. 

The department of employment, referred to 



current name of the state agency. 



38-1516. Penalties. — Any person who shall violate or aid in the 
violation of any of the provisions of this chapter shall be guilty of a 



105 IDAHO FOREST PRODUCTS COMMISSION 38-1517 

misdemeanor and upon conviction thereof be punished by a fine of not more 
than one thousand dollars ($1,000) or by imprisonment not to exceed ninety 
(90) days or by both. Fines collected for violations shall be paid into the fund 
which accrues to administer the provisions of this chapter. 

History. 

I.C., § 38-1516, as added by 1992, ch. 163, 
§ 1, p. 518. 

38-1517. Deposit and disbursement of funds. — (1) Immediately 
upon receipt, all moneys received by the commission shall be deposited in 
one (1) or more banks or trust companies approved under chapter 27, title 
67, Idaho Code, as state depositories. The commission shall designate such 
banks or trust companies. All funds so deposited are hereby continuously 
appropriated for the purpose of carrying out the provisions of this chapter. 

(2) Funds can be withdrawn or paid out of such accounts only upon 
checks or other orders upon such accounts signed by two (2) officers 
designated by the commission when the amount of such payments exceeds 
two thousand dollars ($2,000). Such designees may include the members of 
the staff of the commission. 

(3) The right is reserved to the state of Idaho to audit the funds to the 
commission at any time. 

(4) On or before January 15 of each year, the commission shall file with 
the senate and house committees responsible for natural resources, the 
legislative services office, the state controller, and the division of financial 
management, a report showing the annual income and expenses by stan- 
dard classification of the commission for the preceding year. The report shall 
also include an estimate of income of the commission for the current and 
next fiscal year and a projection of anticipated expenses by category for the 
current and next fiscal year. From and after January 15, 1994, the report 
shall also include a reconciliation between the estimated income and 
expenses projected and the actual income and expenses of the preceding 
year. 

(5) All moneys received or expended by the commission shall be audited 
annually by a certified public accountant designated by the commission, 
who shall furnish a copy of such audit to the director of legislative services. 
The audit shall be completed within ninety (90) days following the close of 
the fiscal year. 

(6) The expenditures of the commission are expressly exempted from the 
provisions of sections 67-2007 and 67-2008, Idaho Code. 

History. am. 1994, ch. 180, § 70, p. 420; am. 1996, ch. 

I.C., § 38-1517, as added by 1992, ch. 163, 159, § 16, p. 502; am. 2003, ch. 32, § 20, p. 
§ 1, p. 518; am. 1993, ch. 327, § 19, p. 1186; 115. 

STATUTORY NOTES 

Cross References. State controller, § 67-1001 et seq. 

Division of financial management, § 67- Effective Dates. 

!910- Section 241 of S.L. 1994, ch. 180 provided 

Legislative services office, § 67-701 et seq. that such act should become effective on and 



38-1518 FORESTRY 106 

after the first Monday in January, 1995 [Jan- election held on November 8, 1994. Since such 

uary 2, 1995] if the amendment to the Con- amendment was adopted, the amendment to 

stitution of Idaho changing the names of the t hi s section by § 70 of S.L. 1994, ch. 180 

state auditor to state controller [1994 S.J.R. became effective January 2, 1995. 
No. 109, p. 1493] was adopted at the general 

38-1518. Dissolution of the commission. — (1) Subject to the condi- 
tions set forth in this section, the commission may be dissolved upon a vote, 
carried out by written ballot by all those who have paid assessments to the 
commission during the calendar year immediately preceding the vote. No 
such referendum may take place at any time prior to three (3) years from the 
date of enactment of this chapter. No such vote may be taken unless first 
approved by a majority of the commission who shall then report to those who 
have paid assessments to the commission for the reasons for the recom- 
mended dissolution together with any opposing views held by members of 
the commission, provided, however, that financial supporters who, together 
represent no less than fifty percent (50%) of the total assessments paid to 
the commission in the preceding year, or financial supporters who, together 
represent no less than ten percent (10%) of the total financial supporters for 
the preceding year may petition for a vote of dissolution without the 
approval of the commission. In no case, however, shall the commission be 
dissolved through a vote of the financial supporters unless the vote in favor 
of the dissolution exceeds sixty percent (60%) of the total assessments paid 
to the commission in the preceding year. One dollar ($1.00) of assessment 
collected shall equal one (1) vote. 

(2) Should such dissolution as described in this section occur, any 
unencumbered funds held by the commission shall be divided equally 
among private or public groups or agencies which, in the judgment of the 
commission, can best carry out the duties and authorities of the commission. 

History. 

I.C., § 38-1518, as added by 1992, ch. 163, 
§ 1, p. 518. 

STATUTORY NOTES 

Compiler's Notes. (1) refers to the date of the enactment of S.L. 

The phrase "the date of enactment of this 1992, ch. 163, which was effective July 1, 
chapter" in the second sentence in subsection 1992. 

CHAPTER 16 

INTERSTATE FOREST FIRE SUPPRESSION 
COMPACT 

SECTION. 

38-1601. Interstate inmate firefighter com- 
pact. 

38-1601. Interstate inmate firefighter compact. — The "Interstate 
Inmate Firefighter Compact" is hereby enacted into law and entered into by 



107 INTERSTATE FOREST FIRE SUPPRESSION COMPACT 38-1601 

this state with any other states legally joining therein in the form substan- 
tially as follows: 

INTERSTATE FOREST FIRE SUPPRESSION COMPACT 

ARTICLE I — Purpose and Policy 

The purpose of this compact is to provide for the development and 
execution of programs to facilitate the use of offenders in the forest fire 
suppression efforts of the party states for the ultimate protection of life, 
property and natural resources in the party states. The purpose of this 
compact is also, in emergent situations, to allow a sending state to cross 
state lines with an inmate when, due to weather or road conditions, it is 
necessary to cross state lines to facilitate the transport of an inmate. 

ARTICLE II — Definitions 

As used in this compact, unless the context clearly requires otherwise: 

(1) "Fire suppression unit" means a group of inmates selected by the 
sending states, corrections personnel, and any other persons deemed 
necessary for the transportation, supervision, care, security and discipline 
of inmates to be used in forest fire suppression efforts in the receiving state. 

(2) "Forest fire" means any fire burning in any land designated by a party 
state or federal land management agencies as forest land. 

(3) "Inmate" means a male or female offender who is under sentence to or 
confined in a prison or other correctional institution. 

(4) "Institution" means any prison, reformatory, honor camp, or other 
correctional facility, except facilities for people with mental illness or 
intellectual disabilities, in which inmates may lawfully be confined. 

(5) "Receiving state" means a state party to this compact to which a fire 
suppression unit is traveling. 

(6) "Sending state" means a state party to this compact from which a fire 
suppression unit is traveling. 

ARTICLE III — Contracts 

(1) Each party state may make one or more contracts with any one or 
more of the other party states for the assistance of one or more fire 
suppression units in forest fire suppression efforts. Any such contract shall 
provide, for matters as may be necessary and appropriate, to fix the 
obligations, responsibilities and rights of the sending and receiving state. 

(2) The terms and provisions of this compact shall be part of any contract 
entered into by the authority of, or pursuant to, this compact. Nothing in 
any such contract may be inconsistent with this compact. 

ARTICLE IV — Procedures and Rights 

(1) Each party state shall appoint a liaison for the coordination and 
deployment of the fire suppression units of each party state. 

(2) Whenever the duly constituted judicial or administrative authorities 
in a state party to this compact, that has entered into a contract pursuant 



38-1601 FORESTRY 108 

to this compact, decides that the assistance of a fire suppression unit of a 
party state is required for forest fire suppression efforts, such authorities 
may request the assistance of one or more fire suppression units of any state 
party to this compact through an appointed liaison. 

(3) Inmates who are members of a fire suppression unit shall at all times 
be subject to the jurisdiction of the sending state, and at all times shall be 
under the ultimate custody of corrections officers duly accredited by the 
sending state. 

(4) The receiving state shall make adequate arrangements for the con- 
finement of inmates who are members of a fire suppression unit of a sending 
state in the event corrections officers duly accredited by the sending state 
make a discretionary determination that an inmate requires institutional 
confinement. 

(5) Cooperative efforts shall be made by corrections officers and personnel 
of the receiving state, located at a fire camp, with the corrections officers and 
other personnel of the sending state in the establishment and maintenance 
of fire suppression unit base camps. 

(6) All inmates who are members of a fire suppression unit of a sending 
state shall be cared for and treated equally with such similar inmates of the 
receiving state, as may be members of a fire suppression unit of the 
receiving state. 

(7) Further, in emergent situations, a sending state shall be granted 
authority and all the protections of any compact under this chapter to cross 
state lines with an inmate when, due to weather or road conditions, it is 
necessary to facilitate the transport of an inmate. 

ARTICLE V — Acts Not Reviewable in Receiving State; Extradition 

(1) If, while located within the territory of a receiving state, there occurs 
against the inmate within such state any criminal charge or if the inmate is 
suspected of committing, within such state a criminal offense, the inmate 
shall not be returned without the consent of the receiving state until 
discharged from prosecution or other form of proceeding, imprisonment or 
detention for such offense. The duly accredited officers of the sending state 
shall be permitted to transport inmates pursuant to this compact through 
any and all states party to this compact without interference. 

(2) An inmate member of a fire suppression unit of the sending state who 
is deemed to have escaped by a duly accredited corrections officer of a 
sending state shall be under the jurisdiction of both the sending state and 
the receiving state. Nothing contained in any compact shall be construed to 
prevent or affect the activities of officers and guards of any jurisdiction 
directed toward the apprehension and return of an escapee. 

ARTICLE VI — Entry into Force 

This compact shall enter into force and become effective and binding upon 
the states so acting when it has been enacted into law by Idaho and any 
other state. 

ARTICLE VII — Withdrawal and Termination 

This compact shall continue in force and remain binding upon a party 
state until it has enacted a statute repealing the same and providing for the 



109 INTERSTATE FOREST FIRE SUPPRESSION COMPACT 38-1601 

sending of formal written notice of withdrawal from the compact to the 
appropriate officials of all other party states. 

ARTICLE VIII — Other Arrangements Unaffected 

Nothing contained in this compact may be construed to abrogate or impair 
any agreement or other agreement that a party state may have with a 
nonparty state for the confinement, rehabilitation or treatment of inmates 
nor to repeal any other laws of a party state authorizing the making of 
cooperative institutional arrangements. 

ARTICLE IX — Construction and Severability 

The provisions of this compact shall be liberally construed and shall be 
severable. If any phrase, clause, sentence or provision of such compact is 
declared to be contrary to the constitution of any participating state or of the 
United States or the applicability thereof to any government, agency, person 
or circumstance is held invalid, the validity of the remainder of this compact 
and the applicability thereof to any government, agency, person or circum- 
stance shall not be affected thereby. If this compact shall be held contrary to 
the constitution of any state participating therein, the compact shall remain 
in full force and effect as to the remaining states and in full force and effect 
as to the state affected as to all severable matters. 

History. 

I.C., § 38-1601, as added by 1993, ch. 80, 
§ 1, p. 208; am. 2010, ch. 235, § 21, p. 542. 

STATUTORY NOTES 

Amendments. illness or intellectual abilities" for "except 

The 2010 amendment, by ch. 235, substi- facilities for the mentally ill or mentally 
tuted "except facilities for people with mental handicapped" in subsection (4) of Article II. 



TITLE 39 
HEALTH AND SAFETY 



1. Environmental Quality — Health, §§ 39- 

^01 39-175C 

2. Vital Statistics, §§ 39-201 — 39-278. 

3. Alcoholism and Intoxication Treatment Act, 

§§ 39-300 — 39-316. 

4. Public Health Districts, §§ 39-401 — 39- 

427. 

5. Aquifer Protection Districts, §§ 39-501 — 

39-508. 

6. Control of Venereal Diseases, §§ 39-601 

— 39-610. 

7. Advertising Cures for Sexual Disorders. 

[Repealed.] 

8. Contraceptives and Prophylactics, §§ 39- 

801 — 39-810. 

9. Prevention of Blindness and Other Pre- 

ventable Diseases in Infants, §§ 39-901 

— 39-912. 

10. Prevention of Congenital Syphilis, §§ 39- 

1001 — 39-1006. 

11. Basic Day Care License, §§ 39-1101 — 

39-1120. 

12. Child Care Licensing Reform Act, §§ 39- 

1201 — 39-1224. 

13. Hospital Licenses and Inspection, §§ 39- 

1301 — 39-1395. 

14. Health Facilities, §§ 39-1401 — 39- 

1460. 

15. Care of Biological Products, §§ 39-1501 

— 39-1503. 

16. Food Establishment Act, §§ 39-1601 — 

39-1613. 

17. Health Regulations for Eating Places and 

Food Establishments — Grading and Li- 
censing. [Reserved or Repealed.] 

18. Hotels and Food Vending Establishments 

— Regulations and Inspection, §§ 39- 
1801 — 39-1834. 

19. Fire Escapes and Doors, §§ 39-1901 — 

39-1905. 

20. Barber Shops, Hairdressing Establish- 

ments and Public Bathing Places. [Re- 
pealed.] 

21. Marking of Explosives, 

2103. 



39-2101 — 39- 44 



CHAPTER 

22. Liquefied Petroleum Gases. [Repealed.] 
Smoke Management. [Repealed.] 
Home Health Agencies, §§ 39-2401 — 

39-2411. 
Speed, Equipment and Traffic Regulations 

for Boats and Watercraft. [Repealed.] 
Fireworks, §§ 39-2601 — 39-2630. 
Plumbing and Plumbers. [Amended and Re- 
designated or Repealed.] 
Abatement Districts, §§ 39-2801 — 39- 

2814. 
Energy Efficient State Buildings [Effec- 
tive until July 1, 2013], §§ 39-2901 — 

39-2904. 
Radiation and Nuclear Material, §§ 39- 

3001 — 39-3030. 
Regional Mental Health Services, §§ 39- 

3101 — 39-3139. 
Idaho Community Health Center Grant 

Program, §§ 39-3201 — 39-3209. 
Idaho Residential Care or Assisted Living 

Act, §§ 39-3301 — 39-3393. 
Revised Uniform Anatomical Gift Act, 

§§ 39-3401 — 39-3425. 
Idaho Certified Family Homes, §§ 39- 

3501 — 39-3580. 
Water Quality, §§ 39-3601 — 39-3639. 
Anatomical Tissue, Organ, Fluid Dona- 
tions, §§ 39-3701 — 39-3703. 
Minors — Consent to Treatment, § 39- 

3801. 
Sterilization, §§ 39-3901 — 39-3915. 
Manufactured Homes — Standards, 

§§ 39-4001 — 39-4011. 
Idaho Building Code Act, §§ 39-4101 — 

39-4131. 
Recreational Vehicles and Park Trailers, 

§§ 39-4201 — 39-4203. 
Modular Buildings, §§ 39-4301 — 39- 

4306. 
Hazardous Waste Management, §§ 39- 

4401 — 39-4432. 



23. 
24. 

25. 

26. 

27. 

28. 
29. 



30. 

31. 

32. 

33. 

34. 

35. 

36. 
37. 

38. 

39. 
40. 

41. 

42. 

43. 



CHAPTER 1 
ENVIRONMENTAL QUALITY — HEALTH 



SECTION. 

39-101. Short title. 

39-102. State policy on environmental pro- 
tection. 



SECTION. 

39-102A. Legislative intent in creating de- 
partment of environmental 
quality. 



Ill 



39-101 



HEALTH AND SAFETY 



112 



SECTION. 

39-103. Definitions. 

39-104. Department of environmental qual- 
ity — Creation. 

39- 104b. [Amended and redesignated.] 

39-104c. Transfer of powers to administrator 
of department of environmen- 
tal and community services. 
[Repealed.] 

39-104A. Authority to make rules regulating 
large swine feeding operations 

— Financial assurances. 
39-105. Powers and duties of the director. 
39-106. Director — Additional powers and 

duties — Transfer and contin- 
uation of rules and other pro- 
ceedings. 

39-107. Board — Composition — Officers — 
Compensation — Powers — 
Subpoena — Depositions — 
Review — Rules. 

39-107A. Real property in Bunker Hill 
cleanup site. 

39-107B. Department of environmental qual- 
ity fund. 

39-107C. Environmental protection trust 
fund established. 

39-107D. Rules of department or board. 

39-108. Investigation — Inspection — Right 
of entry — Violation — En- 
forcement — Penalty — In- 
junctions. 

39-109. Commencement of civil enforcement 
actions — Criminal actions 
authorized — Duties of attor- 
ney general. 

39-110. Registration of persons engaged in 
operations or construction 
where air pollution is a factor 

— Reports. 
39-111. Availability of records. 

39-112. Emergency — Order — Hearing — 
Modification, affirmance, or 
setting aside. 

39-113. Transfer of employees. 

39-114. Open burning of crop residue. 

39-115. Pollution source permits. 

39-116. Compliance schedules. 

39-116A. Compliance agreement schedules. 

39-116B. Vehicle inspection and mainte- 
nance program. 

39-117. Criminal violation — Penalty. 

39-118. Review of plans. 

39-118A. Ore processing by cyanidation. 



SECTION. 

39-118B. Relationship to federal law. 

39-118C. Legislative findings and declara- 
tion of purpose. 

39-118D. Idaho air quality permitting fund. 

39-118E. Small business assistance. 

39-119. Collection of fees for services. 

39-120. Department of environmental qual- 
ity primary administrative 
agency — Agency responsibil- 
ities. 

39-121. Definitions. 

39-122, 39-123. [Repealed.] 

39-124. Legislative findings — Intent. [Null 
and void.] 

39-125. Moratorium on construction of cer- 
tain coal fired power plants — 
Report. [Null and void.] 

39-126. Duties of state and local units of 
government. 

39-127. Application of fertilizers and pesti- 
cides. 

39-128. Applicability — Promulgation of 
rules — Establishment of 
zones — Combustor charging 
composition and 

recordkeeping — Report to lo- 
cal government — Permit pro- 
cessing. 

39-129. Applicability — Definition of local 
government and mandates — 
Authorization for local govern- 
ment agreements — Adoption 
of rules — Establishment of 
schedules — Priority of con- 
siderations — Report and rec- 
ommendations. 

39-130. Removal — Remediation — Bunker 
Hill mining and metallurgical 
complex superfund facility. 

39-131 — 39-136. [Repealed.] 

39-137 — 39-138. [Reserved.] 

39-139 — 39-170. [Amended and redesig- 
nated.] 

39-171. Legislative findings and purpose. 

39-172. Definitions. 

39-173. Committee — Members — Terms. 

39-174. Committee duties — Meetings. 

39-175. [Reserved.] 

39-175A. Legislative findings and purposes. 

39-175B. Relationship between state and 
federal law. 

39-175C. Approval of state NPDES program. 



39-101. Short title. — Sections 39-101 through 39-130, Idaho Code, 
may be known and cited as the "Idaho Environmental Protection and Health 
Act." 



History. 

1972, ch. 347, 
§ 1, p. 169. 



1, p. 1017; am. 1986, ch. 60, 



113 



ENVIRONMENTAL QUALITY — HEALTH 



39-102 



STATUTORY NOTES 



Cross References. 

Administration and enforcement of use of 
breed name of cattle on label of milk and milk 
products act, §§ 37-339 to 37-343. 

City and county hospitals, § 31-3701 et seq. 

County environmental pollution control fa- 
cilities, financing, § 31-4501 et seq. 

Director, duties in prevention of infant dis- 
eases and blindness, § 39-906. 

Educational institutions, Title 33, Idaho 
Code. 

Food Establishment Act, § 39-1601 et seq. 

Permit issued to seller of milk or milk 
products to use breed name of dairy cattle on 
label, § 37-340. 

Probation officers providing services to 
counties, § 20-529. 



Veterans' home, § 66-901 et seq. 
Vital statistics, duty to enforce law govern- 
ing, § 39-240 et seq. 

Prior Laws. 

Former sections 39-101 to 39-128, 39-130, 
which comprised S.L. 1967, ch. 311, §§ 1 to 
-26, p. 870; am. 1969, ch. 13, § 1, p. 18; am. 
1969, ch. 16, § 1, p. 28; 1969, ch. 337, § 1, p. 
1060; I.C., § 39-128, as added by 1970, ch. 18, 
§ 1, p. 33; I.C., § 39-130, as added by 1971, 
ch. 42, § 1, p. 89; am. 1971, ch. 136, § 24, p. 
522; I.C., § 39-112A, as added by 1971, ch. 
365, § 1, p. 1361; 1972, ch. 44, § 4, were 
repealed by S.L. 1972, ch. 347, § 14, p. 1017. 



Limitation on actions. 
Nuisance claims. 



JUDICIAL DECISIONS 

Analysis 



Limitation on Actions. 

Since this chapter does not provide its own 
statute of limitation, the four-year limitation 
provided by § 5-224 applies to actions 
brought under it. Aetna Cas. & Sur. Co. v. 
Gulf Resources & Chem. Corp., 600 F. Supp. 
797 (D. Idaho 1985). 

Where a complaint of nuisance is perma- 
nent, the cause of action must be commenced 
within four years from the date the perma- 
nent nuisance was created or occurred; where 
the nuisance is temporary and continuing in 
nature, the statute of limitations does not run 



and an action may be brought at any time to 
recover damages occurring within the previ- 
ous limitation period. Aetna Cas. & Sur. Co. v. 
Gulf Resources & Chem. Corp., 600 F. Supp. 
797 (D. Idaho 1985). 

Nuisance Claims. 

This chapter does not preempt common law 
nuisance claims. Idaho v. Bunker Hill Co., 635 
F. Supp. 665 (D. Idaho 1986); Idaho v. Hanna 
Mining Co., 699 F. Supp. 827 (D. Idaho 1987), 
aff'd, 882 F.2d 392 (9th Cir. 1989). 



RESEARCH REFERENCES 



Am. Jur. — 39 Am. Jur. 2d, Health, § 1 et 
seq. 

C.J.S. — 39A C.J.S., Health and Environ- 
ment, § 7 et seq. 

A.L.R. — Power of court or other public 
agency to order medical treatment over pa- 
rental religious objections for child whose life 
is not immediately endangered. 21 A.L.R.5th 
248. 

Power of court or other public agency to 



order medical treatment for child over paren- 
tal objections not based on religious grounds. 
97 A.L.R.3d 421. 

Amount and characteristics of wastes as 
equitable factors in allocation of response 
costs pursuant to § 113(f)(1) of Comprehen- 
sive Environmental Response, Compensation, 
and Liability Act (CERCLA), 42 U.S.C.A. 
§ 9613(f)(1): multiple waste streams. 162 
A.L.R. Fed. 371. 



39-102. State policy on environmental protection. — 1. It is 

hereby recognized by the legislature that the protection of the environment 
and the promotion of personal health are vital concerns and are therefore of 
great importance to the future welfare of this state. It is therefore declared 
to be the policy of the state to provide for the protection of the environment 
and the promotion of personal health and to thereby protect and promote 
the health, safety and general welfare of the people of this state. 

2. The goal of the legislature in enacting the ground water quality 



39-102A HEALTH AND SAFETY 114 

protection act of 1989 shall be to maintain the existing high quality of the 
state's ground water and to satisfy existing and projected future beneficial 
uses including drinking water, agricultural, industrial and aquacultural 
water supplies. All ground water shall be protected as a valuable public 
resource against unreasonable contamination or deterioration. The quality 
of degraded ground water shall be restored where feasible and appropriate 
to support identified beneficial uses. 

3. In enacting this law, the legislature intends to prevent contamination 
of ground water from point and nonpoint sources of contamination to the 
maximum extent practical. In attaining the goals enumerated in subsec- 
tions 1 and 2 of this section, the legislature wishes to enumerate the 
following ground water quality protection goals: 

a. It is the policy of the state to prevent contamination of ground water 
from any source to the maximum extent practical. 

b. The discovery of any contamination that poses a threat to existing or 
projected future beneficial uses of ground water shall require appropriate 
actions to prevent further contamination. These actions may consist of 
investigation and evaluation or enforcement actions if necessary to stop 
further contamination or clean up existing contamination as required 
under the environmental protection and health act. 

c. All persons in the state should conduct their activities so as to prevent 
the nonregulated release of contaminants into ground water. 

d. Education of the citizens of the state is necessary to preserve and 
restore ground water quality. 

History. 

1972, ch. 347, § 2, p. 1017; am. 1989, ch. 
421, § 1, p. 1027. 

STATUTORY NOTES 

Prior Laws. 1989, referred to in subsection 2, is the short 

Former § 39-102 was repealed. See Prior title of S.L. 1989, ch. 421, which is codified as 

Laws, § 39-101. §§ 39-102, 39-120, 39-121, 39-126, 39-127, 

Compiler's Notes. and 67-6537. 
The groundwater quality protection act of 

39- 102 A. Legislative intent in creating department of environ- 
mental quality. — The legislature finds and declares that: 

(1) The creation and establishment of the department of environmental 
quality to protect human health and the environment as its sole mission is 
in the public's interest; 

(2) That all existing, but no new rights, powers, duties, budgets, funds, 
contracts, rulemaking proceedings, administrative proceedings, contested 
cases, civil actions, and other matters relating to environmental protection 
as described in this chapter, vested in the director of the department of 
health and welfare and the board of health and welfare on January 1, 2000, 
shall be transferred to the board of environmental quality, the department 
of environmental quality and its director as described herein effective July 
1, 2000; 

(3) That protecting environmental values including, but not limited to, 



115 ENVIRONMENTAL QUALITY — HEALTH 39-103 

clean air, water and soil, reducing or eliminating environmental pollution 
arising from human activities, ensuring the proper treatment, storage and 
disposal of hazardous wastes and ensuring the proper cleanup and restora- 
tion of existing natural resources are vital interests of the state of Idaho; 

(4) That it is in the interest of the state and its citizens to establish a 
department of environmental quality to carry out programs to protect 
human health and the environment, to enforce environmental laws and 
develop pollution prevention, compliance assistance and other environmen- 
tal incentive programs; 

(5) That the goals to protect human health and the environment can be 
best achieved by vesting responsibility for environmental protection as 
specified herein in a state department which has as its sole mission, 
protection for human health and the environment for the state of Idaho and 
its residents; 

(6) The legislature further intends that environmental quality programs 
be promulgated and managed such that the benefits of pollution control 
measures have a reasonable relationship to the public health costs, private 
property rights, environmental, economic and energy impacts of such 
measures, provided that this section does not require the preparation of any 
economic, environmental or other statement; 

(7) That the department of environmental quality shall utilize the 
designated program appropriations made to the department of health and 
welfare for environmental program functions, the division of environmental 
quality and the INEEL oversight program for fiscal year 2001. 

History. 

I.C., § 39-102A, as added by 2000, ch. 132, 
§ 4, p. 309. 

STATUTORY NOTES 

Effective Dates. nate all references to the Division of Environ- 

«$?$&* 39 ?. f §£■ - 20 P^ i* 1 ' 132 Prides: men tal Quality which appear in the master 
(1) This act shall be in full force and effect on i j j. u -i.jL.Li- j- 

jo. t i 1 onnn * a x ...l- ta- • rule database maintained by the coordinator, 

and after July 1, 2000, except that the Divi- , .__ ^ x L »„ . L . ~ ,.^ 

sion of Environmental Quality shall have one to the Department of Environmental Quality 

(1) year thereafter to accomplish necessary wl thout further republication or promulga- 

changes to complete the physical transition to tion > to comply with the provisions of this act. 

the new department. Until such time as a republication of a rule 

"(2) Notwithstanding any other provisions occurs, any reference in a rule to the Division 

of Chapter 52, Title 67, Idaho Code, the Ad- of Environmental Quality shall mean the De- 

ministrative Rules Coordinator shall redesig- partment of Environmental Quality." 

39-103. Definitions. — Whenever used or referred to in this chapter, 
unless a different meaning clearly appears from the context, the following 
terms shall have the following meanings: 

(1) "Air contaminant" or "air contamination" means the presence in the 
outdoor atmosphere of any dust, fume, mist, smoke, radionuclide, vapor, gas 
or other gaseous fluid or particulate substance differing in composition from 
or exceeding in concentration the natural components of the atmosphere. 

(2) "Air pollution" means the presence in the outdoor atmosphere of any 
contaminant or combination thereof in such quantity of such nature and 
duration and under such conditions as would be injurious to human health 



39-103 HEALTH AND SAFETY 116 

or welfare, to animal or plant life, or to property, or to interfere unreason- 
ably with the enjoyment of life or property. 

(3) "Board" means the board of environmental quality. 

(4) "Cyanidation" means the method of extracting target precious metals 
from ores by treatment with cyanide solution, which is the primary leaching 
agent for extraction. 

(5) "Cyanidation facility" means that portion of a new ore processing 
facility, or a material modification or a material expansion of that portion of 
an existing ore processing facility that utilizes cyanidation and is intended 
to contain, treat, or dispose of cyanide containing materials including spent 
ore, tailings, and process water. 

(6) "Department" means the department of environmental quality. 

(7) "Director" means the director of the department of environmental 
quality or the director's designee. 

(8) "Emission" means any controlled or uncontrolled release or discharge 
into the outdoor atmosphere of any air contaminant or combination thereof. 
Emission also includes any release or discharge of any air contaminant from 
a stack, vent or other means into the outdoor atmosphere that originates 
from an emission unit. 

(9) "Laboratory" means not only facilities for biological, serological, 
biophysical, cytological and pathological tests, but also facilities for the 
chemical or other examination of materials from water or other substances. 

(10) "Medical waste combustor" means any device, incinerator, furnace, 
boiler or burner, and any and all appurtenances thereto, which burns or 
pyrolyzes medical waste consisting of human or animal tissues, medical 
cultures, human blood or blood products, materials contaminated with 
human blood or tissues, used or unused surgical wastes, used or unused 
sharps, including hypodermic needles, suture needles, syringes and scalpel 
blades. 

(11) "Person" means any individual, association, partnership, firm, joint 
stock company, trust, estate, political subdivision, public or private corpo- 
ration, state or federal governmental department, agency or instrumental- 
ity, or any other legal entity which is recognized by law as the subject of 
rights and duties. 

(12) "Public water supply" or "public drinking water system" means a 
system for the provision to the public of water for human consumption 
through pipes or other constructed conveyances, if such system has at least 
fifteen (15) service connections, regardless of the number of water sources or 
configuration of the distribution system, or regularly serves an average of at 
least twenty-five (25) individuals daily at least sixty (60) days out of the 
year. Such term includes any collection, treatment, storage and distribution 
facilities that are under the control of the operator of such system and used 
primarily in connection with such system, and any collection or 
pretreatment storage facilities not under such control that are used prima- 
rily in connection with such system. Such term does not include any special 
irrigation district. 

(13) "Solid waste" means garbage, refuse, radionuclides and other dis- 
carded solid materials, including solid waste materials resulting from 
industrial, commercial and agricultural operations and from community 



117 ENVIRONMENTAL QUALITY — HEALTH 39-103 

activities but does not include solid or dissolved materials in domestic 
sewage or other significant pollutants in water resources, such as silt, 
dissolved or suspended solids in industrial waste water effluents, dissolved 
materials in irrigation return flows or other common water pollutants. 

(14) "Solid waste disposal" means the collection, storage, treatment, 
utilization, processing or final disposal of solid waste. 

(15) "State" means the state of Idaho. 

(16) "Substantive" means that which creates, defines or regulates the 
rights of any person or implements, interprets or prescribes law or policy, 
but does not include statements concerning only the internal management 
of the department and not affecting private rights or procedures available to 
the public. 

(17) "Water pollution" is such alteration of the physical, thermal, chem- 
ical, biological or radioactive properties of any waters of the state, or such 
discharge of any contaminant into the waters of the state as will or is likely 
to create a nuisance or render such waters harmful or detrimental or 
injurious to public health, safety or welfare or to domestic, commercial, 
industrial, recreational, esthetic or other legitimate uses or to livestock, wild 
animals, birds, fish or other aquatic life. 

(18) "Waters" means all accumulations of water, surface and under- 
ground, natural and artificial, public and private or parts thereof which are 
wholly or partially within, flow through or border upon this state except for 
private waters as defined in section 42-212, Idaho Code. 

History. am. 2000, ch. 132, § 5, p. 309; am. 2005, ch. 

I.C., § 39-103 as added by S.L. 1992, ch. 167, § 1, p. 509; am. 2010, ch. 23, § 1, p. 41. 
305, § 4, p. 911; am. 1993, ch. 267, § l,p.899; 

STATUTORY NOTES 

Prior Laws. water to the public and which the department 

Former § 39-103, which comprised 1972, declares to have potential health signifi- 

ch. 347, § 3, p. 1017; am. 1973, ch. 143, § 1, p. cance". 

279; am. 1974, ch. 23, § 47, p. 633; am. 1978, „ ., , 

ch. 45, § 1, p. 80; am. 1989, ch. 308, § 2, p. Compiler's Notes. 

762; am. 1990, ch. 357, § 1, p. 965; am. 1992, Section 5 of S.L. 1992, ch. 305 read: "The 

ch. 305, § 1, was repealed by S.L. 1992, ch. provisions of this act are hereby declared to be 

305, § 3, effective March 1, 1993. severable and if any provision of this act or 

Another former § 39-103 was repealed. See the application of such provision to any per- 

Prior Laws § 39-101 son or c i rcums tance is declared invalid for 

any reason, such declaration shall not affect 

Amendments. the validity of remaining portions of this act." 

The 2010 amendment, by ch. 23, rewrote Section 2 of S.L. 1993, ch. 267 read: "The 

subsection (12) which formerly read: "'Public provisions of this act are hereby declared to be 

water supply means all mains, pipes and severable and if any provision of this act or 

structures through which water is obtained the application of such provision to any per- 

and distributed to the public, including wells son or circumstance is declared invalid for 

and well structures, intakes and cribs, pump- any reason, such declaration shall not affect 

ing stations, treatment plants, reservoirs, the validity of remaining portions of this act." 

storage tanks and appurtenances, collectively Section 2 of S.L. 1992, ch. 305 which pro- 

or severally, actually used or intended for use vided for the promulgation of emergency and 

for the purpose of furnishing water for drink- permanent rules and regulations to amend 

ing or general domestic use in incorporated the Idaho Department of Health and Welfare 

municipalities, or unincorporated communi- Rules and Regulations, Title 1, Chapter 1, 

ties where ten (10) or more separate premises Rules and Regulations for the Control of Air 

or households are being served or intended to Pollution, consistent with that act became 

be served; or any other supply which serves effective April 8, 1992 and subsequently be- 



39-104 HEALTH AND SAFETY 118 

came null and void and of no force and effect Section 39 of S.L. 2000, ch. 132 provides: 

on March 1, 1993 as provided in § 6 of S.L. "(1) This act shall be in full force and effect on 

1992, ch. 305. and after July 1, 2000, except that the Divi- 

sion of Environmental Quality shall have one 

Effective Dates. (1) vear thereafter to accomplish necessary 

bection 6 of S.L. 1992, ch. 305 read: An changes to complete the physical transition to 

emergency existing therefor, which emer- t h e new department. 

gency is hereby declared to exist. Sections 1, "(2) Notwithstanding any other provisions 
2, and 5 of this act shall be in full force and of Chapter 52, Title 67, Idaho Code, the Ad- 
effect on and after passage and approval. ministrative Rules Coordinator shall redesig- 
Sections 1 and 2 of this act shall be null, void nate all references to the Division of Environ- 
and of no force and effect on and after March mental Quality which appear in the master 
1, 1993. Sections 3 and 4 of this act shall be in rule database maintained by the coordinator, 
full force and effect on and after March 1, to the Department of Environmental Quality 
1993." without further republication or promulga- 

Section 3 of S.L. 1993, ch. 267 read: "An tion, to comply with the provisions of this act. 
emergency existing therefor, which emer- Until such time as a republication of a rule 
gency is hereby declared to exist, all sections occurs, any reference in a rule to the Division 
of this act shall be in full force and effect upon of Environmental Quality shall mean the De- 
approval and retroactively to March 1, 1993." partment of Environmental Quality." 

39-104. Department of environmental quality — Creation. — 

(1) There is created and established in the state government a department 
of environmental quality which shall for the purposes of section 20, article 
IV, of the constitution of the state of Idaho be an executive department of the 
state government. The executive and administrative power of this depart- 
ment shall be vested in the director of the department who shall be 
appointed and serve at the pleasure of the governor, with the advice and 
consent of the senate. 

(2) The department shall be organized in such administrative divisions or 
regions as may be necessary in order to efficiently administer the depart- 
ment. Each division shall be headed by an administrator who shall be 
appointed by and serve at the pleasure of the director. 

(3) The INL coordinator, deputy director, regional administrators and 
division administrators shall be nonclassified employees exempt from the 
provisions of chapter 53, title 67, Idaho Code. 

(4) No provision of this title shall be interpreted as to supersede, 
abrogate, injure or create rights to divert or store water and apply water to 
beneficial uses established under section 3, article XV of the constitution of 
the state of Idaho and title 42, Idaho Code. Nothing in this title shall be 
construed to allow the department to establish a water right for minimum 
stream flows or a water right for minimum water levels in any lakes, 
reservoirs or impoundments. Minimum stream flows and minimum water 
levels may only be established pursuant to chapter 15, title 42, Idaho Code. 

(5) Nothing in this title shall be construed to allow the department to 
establish or require minimum stream flows which would prevent any water 
from being diverted for irrigation purposes pursuant to existing water 
rights, or to establish or require minimum water levels in any lakes, 
reservoirs or impoundments in which any water is stored for irrigation 
purposes which would adversely affect existing water rights or contracts 
with the federal government. 

History. § 48, p. 633; am. 1995, ch. 365, § 1, p. 1276; 

1973, ch. 87, § 3, p. 137; I.C., § 39-104b, as am. 2000, ch. 132, § 6, p. 309; am. 2007, ch. 
am. and redesig. to § 39-104 by 1974, ch. 23, 83, § 1, p. 221. 



119 ENVIRONMENTAL QUALITY — HEALTH 39-104A 

STATUTORY NOTES 

Prior Laws. (1) year thereafter to accomplish necessary 

Former § 39-104, which comprised S.L. changes to complete the physical transition to 

S 9 L 72 i9 C 74 3 ch 7 '2 § 3 4 § P f 101? ' ™ ^^ * the new Apartment. 

Another former § 39-104 was repealed. See "< 2 ) Notwithstanding any other provisions 

Prior Laws, § 39-101. of Chapter 52, Title 67, Idaho Code, the Ad- 

ministrative Rules Coordinator shall redesig- 



Amendments. 



nate all references to the Division of Environ- 



The 2007 amendment, by ch. 83, in subsec- . , « ,., ,. , ,, , 

/o\ u ax 4. j «txtt j- *■ » e mental Quality which appear in the master 

tion (3), substituted INL coordinator for , , r\ • . j u ^ j- *. 

aT . T '/' j- x » a - «4. j rule database maintained by the coordinator, 

INEEL coordinator-manager and inserted , ,, ^ , *. *•« • ± i r» i* 

«,,.,„ & to the Department of Environmental Quality 

epu y irec . without further republication or promulga- 

Effective Dates. tion, to comply with the provisions of this act. 

Section 39 of S.L. 2000, ch. 132 provides: Until such time as a republication of a rule 

"(1) This act shall be in full force and effect on occurs, any reference in a rule to the Division 

and after July 1, 2000, except that the Divi- of Environmental Quality shall mean the De- 

sion of Environmental Quality shall have one partment of Environmental Quality." 

39- 104b. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. ignated as § 39-104 by S.L. 1974, ch. 23, 

Former § 39-104b was amended and redes- § 48, effective July 1, 1974. 

39- 104c. Transfer of powers to administrator of department of 
environmental and community services. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. ch. 87, § 4, p. 137, was repealed by S.L. 1974, 

This section, which comprised S.L. 1973, ch. 23, § 1, effective July 1, 1974. 

39-104A. Authority to make rules regulating large swine feeding 
operations — Financial assurances. — (1) The state of Idaho is expe- 
riencing the development of large swine feeding operations which are 
inadequately controlled through existing state regulatory mechanisms. If 
not properly regulated, these facilities pose a threat to the state's surface 
and ground water resources. Due to existing rulemaking authority, the 
department of environmental quality is in the best position of all state 
agencies to modify its present rules and to make new rules to develop an 
adequate regulatory framework for large swine feeding operations. 

(2) The department of environmental quality is authorized to modify its 
existing administrative rules and to make new rules regulating large swine 
feeding operations, as they shall be denned by the department. The 
department is authorized to work with the Idaho department of agriculture 
in the development of such rules. 

(3) Owners and operators of swine facilities required to obtain a permit 
from the department of environmental quality to construct, operate, expand 
or close the facilities shall provide financial assurances demonstrating 
financial capability to meet requirements for operation and closure of the 
facilities and remediation. Requirements for financial assurances shall be 
determined by the agency as set forth in rule. Financial assurances may 



39-104A HEALTH AND SAFETY 120 

include any mechanism or combination of mechanisms meeting the require- 
ments established by agency rule including, but not limited to, surety bonds, 
trust funds, irrevocable letters of credit, insurance and corporate guaran- 
tees. The mechanism(s) used to demonstrate financial capability must be 
legally valid, binding and enforceable under applicable law and must ensure 
that the funds necessary to meet the costs of closure and remediation will be 
available whenever the funds are needed. The director may retain financial 
assurances for up to five (5) years after closure of a facility to ensure proper 
closure and remediation, as defined by rule. 

(4) Those swine facilities described in section 39-7905, Idaho Code, shall 
meet the requirements of section 39-7907, Idaho Code, in addition to the 
requirements of this chapter and the department of environmental quality's 
rules regulating swine facilities, prior to the issuance of a final permit by the 
director. The director shall require that swine facilities be constructed in a 
phased manner over a period of time and that no additional facilities be 
constructed until the director approves the associated waste treatment 
system. 

(5) Nothing in this section prohibits the boards of county commissioners 
of any county or the governing body of any city from adopting regulations 
that are more stringent or that require greater financial assurances than 
those imposed by the department of environmental quality. A board of 
county commissioners of a county or a governing body of a city in which a 
swine facility is located may choose to determine whether the facility is 
properly closed according to imposed standards or may leave that determi- 
nation to the department. This choice shall be communicated to the director 
in writing when closure begins; provided that determinations of closure by 
a board of county commissioners of a county or a governing body of a city in 
which the swine facility is located shall not permit closure under less 
stringent requirements than those imposed by the department. 

(6) As used in this section: 

(a) "Animal unit" means a unit equaling two and one-half (2.5) swine, 
each weighing over twenty-five (25) kilograms (approximately fifty-five 
(55) pounds), or ten (10) weaned swine, each weighing under twenty-five 
(25) kilograms. Total animal units are calculated by adding the number of 
swine weighing over twenty-five (25) kilograms multiplied by four-tenths 
(.4) plus the number of weaned swine weighing under twenty-five (25) 
kilograms multiplied by one-tenth (.1). 

(b) "Facilities" or "facility" means a place, site or location or part thereof 
where swine are kept, handled, housed or otherwise maintained and 
includes, but is not limited to, buildings, lots, pens and animal waste 
management systems, and which has a one-time animal unit capacity of 
two thousand (2,000) or more animal units. 

(c) "Large swine feeding operations" means swine facilities having a 
one-time animal unit capacity of two thousand (2,000) or more animal 
units. 

(d) "One-time animal unit capacity" means the maximum number of 
animal units that a facility is capable of housing at any given time. 



121 



ENVIRONMENTAL QUALITY — HEALTH 



39-105 



History. 

I.C., § 39-104A, as added by 1999, ch. 263, 
§ 1, p. 669; am. 2000, ch. 132, § 7, p. 309; am. 



2000, ch. 221, § 1, p. 614; am. 2001, ch. 103, 
§ 14, p. 253; am. 2001, ch. 350, § 1, p. 1228; 
am. 2011, ch. 227, § 3, p. 615. 



STATUTORY NOTES 



Cross References. 

Department of agriculture, § 22-101 et seq. 

Prior Laws. 

Former § 39-104A, which comprised S.L. 
1973, ch. 87, § 2, was repealed by S.L. 1974, 
ch. 23, § 1. 

Amendments. 

This section was amended by two 2000 acts 
which appear to be compatible and have been 
compiled together. 

The 2000 amendment, by ch. 132, § 7, 
effective July 1, 2000, near the middle of the 
last sentence in subsection (1), deleted "of 
health and welfare, division" preceding "of 
environmental quality"; and near the begin- 
ning of the first sentence in subsection (2), 
substituted "environmental quality" for 
"health and welfare". 

The 2000 amendment, by ch. 221, § 1, 
effective April 12, 2000, added "Financial As- 
surances" to the catchline; near the beginning 
of the second sentence in subsection (1), de- 
leted "department of health and welfare," 
preceding "division of environmental quality", 
deleted the comma preceding "is in the best 
position"; near the beginning of the first sen- 
tence in subsection (2), substituted "division 
of environmental quality" for "department of 
health and welfare", at the end of the sen- 
tence, substituted "division" for "department", 
at the beginning of the last sentence, substi- 
tuted "division" for "department"; and added 
subsections (3) through (5). 

This section was amended by two 2001 acts 
which appear to be compatible and have been 
compiled together. 

The 2001 amendment, by ch. 103 § 14, 
substituted "department" for "division" 
throughout the section. 

The 2001 amendment, by ch. 350, § 1, 
substituted "department" for "division" 
throughout the section; added subsections (4) 
and (5); and redesignated former subsection 
(5) as present subsection (6). 

The 2011 amendment, by ch. 227, in the 
section heading and throughout the text, de- 



leted "and poultry" following "swine"; deleted 
the former last sentence in subsection (4), 
which read: "The director may require that 
poultry facilities be constructed in a phased 
manner over a period of time and that no 
additional facilities be constructed until the 
director approves the associated waste treat- 
ment system"; in paragraph (6)(a), deleted "or 
one hundred (100) poultry" from the end of 
the first sentence and deleted "plus the num- 
ber of poultry multiplied by one one-hundreth 
(.01)" from the end of the last sentence; and, 
in paragraph (6)(c), deleted "and poultry facil- 
ities" following "swine facilities." 

Compiler's Notes. 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 

Effective Dates. 

Section 2 of S.L. 1999, ch. 263 declared an 
emergency. Approved March 24, 1999. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without further republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality." 

Section 2 of S.L. 2000, ch. 221 declared an 
emergency. Approved April 12, 2000. 

Section 3 of S.L. 2001, ch. 350 declared an 
emergency. Approved April 9, 2001. 

Section 4 of S.L. 2011, ch. 227 declared an 
emergency. Approved April 6, 2011. 



39-105. Powers and duties of the director. — The director shall have 
the following powers and duties: 

(1) All of the rights, powers and duties regarding environmental protec- 
tion functions vested in the department of health and welfare, and its 
director, administered by the division of environmental quality, including, 
but not limited to, those provided by chapters 1, 4, 30, 36, 44, 58, 62, 64, 65, 
66, 70, 71, 72 and 74, title 39, Idaho Code. The director shall have all such 



39-105 HEALTH AND SAFETY 122 

powers and duties as described in this section as may have been or could 
have been exercised by his predecessors in law, and shall be the successor in 
law to all contractual obligations entered into by predecessors in law. All 
hearings of the director shall be governed by the provisions of chapter 52, 
title 67, Idaho Code. 

(2) The director shall, pursuant and subject to the provisions of the Idaho 
Code, and the provisions of this act, formulate and recommend to the board, 
rules as may be necessary to deal with problems related to water pollution, 
air pollution, solid waste disposal, and licensure and certification require- 
ments pertinent thereto, which shall, upon adoption by the board, have the 
force of the law relating to any purpose which may be necessary and feasible 
for enforcing the provisions of this act, including, but not limited to, the 
prevention, control or abatement of environmental pollution or degradation 
including radionuclides and risks to public health related to any of the 
powers and duties described in this section. Any such rule may be of general 
application throughout the state or may be limited as to times, places, 
circumstances or conditions in order to make due allowance for variations 
therein. 

(3) The director, under the rules adopted by the board, shall have the 
general supervision of the promotion and protection of the environment of 
this state. The powers and duties of the director shall include, but not be 
limited to, the following: 

(a) The issuance of licenses and permits as prescribed by law and by the 
rules of the board promulgated hereunder. For each air quality operating 
permit issued under title V of the federal clean air act and its implement- 
ing regulations, the director shall, consistent with the federal clean air act 
and its implementing regulations, expressly include a provision stating 
that compliance with the conditions of the permit shall be deemed 
compliance with the applicable requirements of the federal clean air act 
and the title V implementing regulations. The director may develop and 
issue general permits covering numerous similar sources, as authorized 
by 40 CFR 70.6(d) as may be amended, and as appropriate. 

(b) The enforcement of rules relating to public water supplies and to 
administer the drinking water loan fund pursuant to chapter 76, title 39, 
Idaho Code, including making loans to eligible public drinking water 
systems as defined in the federal safe drinking water act as amended, and 
to comply with all requirements of the act, 42 U.S.C. 300f, et seq. and 
regulations promulgated pursuant to the act. This includes, but is not 
limited to, the development of and implementation of a capacity develop- 
ment strategy to ensure public drinking water systems have the technical, 
managerial and financial capability to comply with the national primary 
drinking water regulations; and the enhancement of protection of source 
waters for public drinking watgr systems. 

(c) The establishment of liaison with other governmental departments, 
agencies and boards in order to effectively assist other governmental 
entities with the planning for the control of or abatement of environmen- 
tal pollution. All of the rules adopted by the board hereunder shall apply 
to state institutions. 

(d) The supervision and administration of a system to safeguard air 
quality and for limiting and controlling the emission of air contaminants. 



123 ENVIRONMENTAL QUALITY — HEALTH 39-105 

(e) The supervision and administration of a system to safeguard the 
quality of the waters of this state including, but not limited to, the 
enforcement of rules relating to the discharge of effluent into the waters 
of this state and the storage, handling and transportation of solids, 
liquids, and gases which may cause or contribute to water pollution. For 
purposes of complying with the clean water act, the director may provide 
an exemption from additional reductions for those nonpoint sources that 
meet the applicable reductions set forth in an approved TMDL as denned 
in chapter 36, title 39, Idaho Code. 

(f) The supervision and administration of administrative units whose 
responsibility shall be to assist and encourage counties, cities, other 
governmental units, and industries in the control of and/or abatement of 
environmental pollution. 

(g) The administration of solid waste disposal site and design review in 
accordance with the provisions of chapter 74, title 39, Idaho Code, and 
chapter 4, title 39, Idaho Code, and in particular as follows: 

(i) The issuance of a solid waste disposal site certificate in the manner 
provided in chapter 74, title 39, Idaho Code. 

(ii) Provide review and approval regarding the design of solid waste 
disposal facilities and ground water monitoring systems and approval 
of all applications for flexible standards as provided in 40 CFR 258, in 
accordance with the provisions of chapter 74, title 39, Idaho Code, 
(hi) Cooperating and coordinating with operational monitoring of solid 
waste disposal sites by district health departments pursuant to author- 
ity established in chapters 4 and 74, title 39, Idaho Code, 
(iv) The authority granted to the director pursuant to provisions of this 
subsection shall be effective upon enactment of chapter 74, title 39, 
Idaho Code, by the legislature. 

(v) The authority to develop and propose rules as necessary to supple- 
ment details of compliance with the solid waste facilities act and 
applicable federal regulations, provided that such regulations shall not 
conflict with the provisions of this act nor shall such regulations be 
more strict than the requirements established in federal law or in the 
solid waste facilities act. 
(h) The establishment, administration and operation of: 
(i) A network of environmental monitoring stations, independent of the 
United States department of energy, within and around the facilities of 
the Idaho national laboratory to provide authoritative auditing and 
analysis of emissions, discharges or releases of pollutants to the 
environment, including the air, water and soil from such facilities; and 
(ii) Programs within the department to utilize the data obtained from 
such monitoring, and any other relevant data, in the enforcement of 
applicable agreements, statutes and rules pertaining to such facilities 
and programs to review, analyze and participate in remedial decisions 
and other proposed actions and projects to ensure the protection of 
public health and the environment. 
The director shall also monitor the implementation of agreements be- 
tween the United States and the state of Idaho related to the operation 
and environmental protection obligations of the Idaho national laboratory 



39-105 HEALTH AND SAFETY 124 

and provide periodic information to the governor, the attorney general, 
the legislature and the people of Idaho concerning compliance with such 
agreements and obligations. The director shall have the power to enter 
into agreements with the United States department of energy in order to 
carry out the duties and authorities provided in this subsection. 
(i) The enforcement of all laws, rules, regulations, codes and standards 
relating to environmental protection and health. 

(j) The enhancement and protection of source waters of the state pursu- 
ant to rules of the board. 

(4) The director, when so designated by the governor, shall have the 
power to apply for, receive on behalf of the state, and utilize any federal aid, 
grants, gifts, gratuities, or moneys made available through the federal 
government including, but not limited to, the federal water pollution control 
act, for use in or by the state of Idaho in relation to health and environmen- 
tal protection. 

(5) The director shall have the power to enter into and make contracts 
and agreements with any public agencies or municipal corporation for 
facilities, land, and equipment when such use will have a beneficial or 
recreational effect or be in the best interest in carrying out the duties 
imposed upon the department. 

The director shall also have the power to enter into contracts for the 
expenditure of state matching funds for local purposes. This subsection will 
constitute the authority for public agencies or municipal corporations to 
enter into such contracts and expend money for the purposes delineated in 
such contracts. 

(6) The director is authorized to adopt an official seal to be used on 
appropriate occasions, in connection with the functions of the department or 
the board, and such seal shall be judicially noticed. Copies of any books, 
records, papers and other documents in the department shall be admitted in 
evidence equally with the originals thereof when authenticated under such 
seal. 

History. § 2, p. 972; am. 1993, ch. 139, § 22, p. 342; 

1972, ch. 347, § 5, p. 1017; am. 1974, ch. 23, am. 1993, ch. 275, § 4, p. 926; am. 1994, ch. 

§ 49, p. 633; am. 1980, ch. 325, § 1, p. 820; 75, § 1, p. 156; am. 1997, ch. 26, § 1, p. 36; 

am. 1988, ch. 47, § 2, p. 54; am. 1989, ch. 308, am. 1999, ch. 174, § 1, p. 467; am. 2000, ch. 

§ 3, p. 762; am. 1991, ch. 332, § 2, p. 859; am. 132, § 8, p. 309; am. 2004, ch. 335, § 2, p. 

1992, ch. 307, § 1, p. 915; am. 1992, ch. 331, 995; am. 2007, ch. 83, § 2, p. 221. 

STATUTORY NOTES 

Cross References. Legislative Intent. 

Attorney general, § 67-1401 et seq. Section 1 of S.L. 1989, ch. 308 read: 

Drinking water and wastewater profession- "(1) The legislature of the state of Idaho 

als, licensing of, § 54-2401 et seq. finds: 

Solid waste facilities act, § 39-7401 et seq. "(a) Waterborne nutrients, including phos- 

phorus and nitrogen, provide nourishment for 

Prior Laws. aquatic plants and fish. 

Former § 39-105 was repealed. See Prior «( D ) Nutrient enrichment or overloading 

Laws, § 39-101. can resu it in overfeeding aquatic plant life, 

Amendments. anc * a subsequent increase in the growth of 

The 2007 amendment, by ch. 83, added algae, 

subsection (3)(h) and made related "(c) Nitrogen, phosphorus and the other 

redesignations. nutrient elements are naturally occurring el- 



125 



ENVIRONMENTAL QUALITY — HEALTH 



39-105 



ements that exist in all living things and are 
essential to all life. 

"(d) Nutrients enter the water through 
rainfall, land runoff, decomposition of plants 
and animals, and other nonpoint sources as 
well as from point sources, including dis- 
charges from industrial operations and sew- 
age treatment facilities. 

"(e) Effective nutrient management re- 
quires an understanding of a complicated 
array of technical factors, including nutrient 
sources, nutrient removal and use and the 
ability of a water body to clean itself. 

"(f) State and federal agencies are cur- 
rently conducting comprehensive technical 
analyses to determine the magnitude of nu- 
trient enrichment in certain bodies of water 
in the state of Idaho and to recommend meth- 
ods to resolve potential nutrient overloading. 

"(g) A comprehensive statewide nutrient 
management plan offers a mechanism to fa- 
cilitate collection and coordination of the in- 
formation for a strong technical base to define 
methods to protect the rivers and lakes of the 
state of Idaho from nutrient overloading. 

"(2) Therefore, it is hereby declared that 
the purposes of this act are: 

"(a) To establish a comprehensive state- 
wide nutrient management plan. 

"(b) To develop the plan on a hydrologic 
basin unit basis with a lake system emphasis. 

"(c) To affirm primary responsibility for nu- 
trient management to the state to assure a 
consistent and effective program throughout 
the state. 

"(d) To clearly express the legislature's in- 
tent that comprehensive basin planning is 
necessary to optimize management actions 
designed to achieve the desired water quality 
benefits." 

Section 1 of S.L. 1991, ch. 332 read: 
"(1) The legislature of the state of Idaho 
finds:" 

"(a) That the waters of Priest lake are threat- 
ened with deterioration that may endanger 
that natural beauty, wildlife and fisheries 
value, recreational use and economic poten- 
tial of Priest lake." 

"(b) That preservation and protection of 
Priest lake and maintenance of the use and 
enjoyment of the lake is in the best interest of 
all citizens of the state." 
"(c) Recreational use of Priest lake is an im- 
portant element of the northern Idaho econ- 
omy." 

"(d) Increasing demands upon the lake re- 
quire coordinated state and local action to 
maintain the existing water quality of the 
lake." 

"(2) Therefore, it is hereby declared that the 
purposes of this act are:" 
"(a) To establish a lake water quality man- 
agement plan for Priest lake to maintain 
existing water quality in lieu of an outstand- 
ing resource water designation." 



"(b) To establish that the department of 
health and welfare is responsible for protect- 
ing the current water quality of Priest lake 
during the management plan development 
period." 

"(c) To provide that the final plan will be 
approved by the board of health and welfare 
and thereafter submitted to the legislature." 

Federal References. 

The federal water pollution control act, re- 
ferred to in subsection (4), may be found in 33 
USCS§ 1251etseq. 

The federal clean air act is codified as 42 
USCS § 7401 et seq. Title V of that act, 
referred to in subsection (3)(a), is compiled as 
42 USCS § 7661 et seq. 

Compiler's Notes. 

Chapter 62, title 39, Idaho Code, referred to 
in subsection (1), was repealed by S.L. 2007, 
ch. 83, effective July 1, 2007. Chapter 64, title 
39, Idaho Code, referred to in subsection (1), 
was repealed by S.L. 2010, ch. 59, effective 
July 1, 2010. 

The term "this act" in subsection (2) refers 
to S.L. 1972, ch. 347, which is codified as 
§§ 39-101, 39-102, 39-105 to 39-107, 39-108, 
and 39-110 to 39-113. 

The term "this act" in subdivision (3)(g)(v) 
refers to S.L. 1992, ch. 331, which is codified 
as §§ 39-105, 39-414, 39-7401, 39-7402, 39- 
7403 to 39-7408, 38-7409, 39-7412, 39-7413, 
and 39-7415 to 39-7420. 

For further information on Idaho national 
laboratory, see https://inlportal.inl.gov/portal/ 
server.pt/community/home . 

Section 3 of S.L. 1988, ch. 39 read: "The 
Director of the Department of Health and 
Welfare shall be granted authority to appoint 
a Computer System Manager, who shall be 
exempt from the provisions of Chapter 53, 
Title 67, Idaho Code." 

Section 24 of S.L. 1993, ch. 139 read: "If any 
section, subsection, sentence, clause or phrase 
of this act is for any reason held to be uncon- 
stitutional, such decision shall not affect the 
validity of the remaining portions of this act." 

Section 1 of S.L. 1996, ch. 323 read: "Pur- 
suant to the requirements of subsection 3. p. of 
Section 39-105, Idaho Code, the Priest Lake 
Management Plan, adopted in November, 
1995, and amended February 16, 1996, be, 
and the same is hereby approved. The Legis- 
lature of the State of Idaho, state agencies 
and political subdivisions shall take appropri- 
ate actions to implement the plan. The Direc- 
tor of the Department of Health and Welfare 
shall, in cooperation with other state agen- 
cies, political subdivisions and the Priest 
Lake Planning Team, ensure consistency with 
the Priest Lake Management Plan and Chap- 
ter 36, Title 39, Idaho Code, so that the plan 
and its implementation are in concert with 
the provisions of Chapter 36, Title 39, Idaho 
Code." 



39-106 HEALTH AND SAFETY 126 

Effective Dates. of Chapter 52, Title 67, Idaho Code, the Ad- 
Section 4 of S.L. 1989, ch. 308 declared an ministrative Rules Coordinator shall redesig- 
emergency. Approved April 3, 1989. . „ rpfprpnr _ tn thp rjivisinn nf F™r™ 
Section 4 of S.L. 1992, ch. 331 declared an nate m reterences t0 tne division ot Jinviron- 
emergency. It became law without the gover- mental Quality which appear in the master 
nor's signature April 15, 1992. rule database maintained by the coordinator, 
Section 25 of S.L. 1993, ch. 139 declared an t o the Department of Environmental Quality 
emergency^Approved March 25 1993. ^^ fartber repu blication or promulga- 

Section 39 of S.L. 2000, ch. 132 provides: .. . ■ r . . %.,. * 
"(1) This act shall be in full force and effect on * on ' to "***}* ™* the Provisions of this act. 
and after July 1, 2000, except that the Divi- Untl1 such time as a republication of a rule 
sion of Environmental Quality shall have one occurs, any reference in a rule to the Division 
(1) year thereafter to accomplish necessary of Environmental Quality shall mean the De- 
changes to complete the physical transition to partment of Environmental Quality" 
the new department. Section 4 of S.L. 2004, ch. 335 declared an 
"(2) Notwithstanding any other provisions emergency Approved March 24, 2004. 

JUDICIAL DECISIONS 

Cited in: State ex rel. Andrus v. Click, 97 
Idaho 791, 554 P.2d 969 (1976). 

39-106. Director — Additional powers and duties — Transfer and 
continuation of rules and other proceedings. — (1) The director shall 
exercise the following powers and duties in addition to all other powers and 
duties inherent in the position: 

(a) Prescribe such policies and procedures as may be necessary for the 
administration of the department, the conduct and duties of the employ- 
ees, the orderly and efficient management of department business, and 
the custody, use and preservation of department records, papers, books 
and property belonging to the state. 

(b) Employ such personnel as may be deemed necessary, prescribe their 
duties and fix their compensation within the limits provided by the state 
personnel system law. 

(c) Administer oaths for all purposes required in the discharge of his 
duties. 

(d) Prescribe the qualifications of all personnel of the department on a 
nonpartisan merit basis, in accordance with the Idaho personnel system 
law, provided, however, that the administrators in charge of any division 
of the department shall serve at the pleasure of the director. 

(e) Create such units, sections and subdivisions as are or may be 
necessary for the proper and efficient functioning of the department [I] . 

(2) [I] All books, records, papers, documents, property, real and personal, 
unexpended appropriations and pending business in any way pertaining to 
the rights, powers and duties regarding environmental protection functions 
vested in the department of health and welfare and its director, adminis- 
tered by the division of environmental quality, are transferred to and vested 
in the department and its director. The department established by this act 
is empowered to acquire, by purchase or exchange, any property which in 
the judgment of the department is needful for the operation of the facilities 
and programs for which it is responsible and to dispose of, by sale or 
exchange, any property which in the judgment of the department is not 
needful for the operation of the same. 

(3) All rules, standards, plans, licenses, permits, consent orders, compli- 
ance schedules, certification, and other agreements pertaining to environ- 



127 ENVIRONMENTAL QUALITY — HEALTH 39-107 

mental protection functions administered by the division of environmental 
quality heretofore adopted or issued by the [I] department of health and 
welfare and its director are transferred to the department of environmental 
quality and shall remain in full force and effect until superseded. The terms 
"department" and "director" in such documents shall mean the department 
of environmental quality and its director, until such documents are 
amended. 

(4) The department of environmental quality and its director shall be the 
successor to all rights, powers and duties of the department of health and 
welfare and its director regarding all rulemaking proceedings, administra- 
tive proceedings, contested cases, civil actions, contracts, delegations, au- 
thorizations and other matters pertaining to environmental protection 
functions. 

History. am. 1990, ch. 56, § 2, p. 127; am. 2000, ch. 59, 

1972, ch. 347, § 6, p. 1017; am. 1974, ch. 23, § 1, p. 125; am. 2000, ch. 132, § 9, p. 309. 
§ 50, p. 633; am. 1987, ch. 223, § 2, p. 475; 

STATUTORY NOTES 

Cross References. executive department in Idaho. Probably, the 

Personnel system, § 67-5301 et seq. reference should be to "this chapter", being 

Prior Laws. chapter 1, title 39, Idaho Code. 
Former § 39-106 was repealed. See Prior 

Laws, § 39-101. Effective Dates. 

Section 39 of S.L. 2000, ch. 132 provides: 

Amendments. « (1) This act shall be ^ M1 force and effect Qn 

This section was amended by two 2000 acts and after Jul x 20QQ t that the Divi . 

which appear to be compatible and have been • f -^ ■ , A ,.f , „ , 

compiled together S10n of Environmental Quality shall have one 

The 2000 amendment, by ch. 59, § 1, sub- (1) vear thereafter to accomplish necessary 

stituted "laws" for "Laws" throughout the sec- changes to complete the physical transition to 

tion; in subdivision la, deleted "and regula- the new department. 

tions" following "such rules"; and in "(2) Notwithstanding any other provisions 
subdivision Id, deleted "the state veterans of Chapter 52, Title 67, Idaho Code, the Ad- 
homes," following "administrators in charge ministrative Rules Coordinator shall redesig- 
° The 2000 amendment, by ch. 132, § 9, ^ate all references to the Division of Environ- 
rewrote this section. m ® ntal Q uallt y wmch a PPear m the master 

rule database maintained by the coordinator, 

Compiler's Notes. to the Department of Environmental Quality 

The bracketed letters in subdivision (l)(e) without further republication or promulga- 

and subsections (2) and (3) were inserted by tion, to comply with the provisions of this act. 

the compiler as a result of confo rmin g the two Until such time as a republication of a rule 

2000 amendments of this section. occurs, any reference in a rule to the Division 

The term "this act" in subsection (2) refers of Environmental Quality shall mean the De- 

to S.L. 1974, ch. 23, which reorganized the partment of Environmental Quality." 

JUDICIAL DECISIONS 

Cited in: Salinas v. Amalgamated Sugar 
Co., 341 F. Supp. 311 (D. Idaho 1972). 

39-107. Board — Composition — Officers — Compensation — 
Powers — Subpoena — Depositions — Review — Rules. — 

(l)(a) The board of environmental quality shall consist of seven (7) 
members who shall be appointed by the governor, with the advice and 
consent of the senate. The members shall serve at the pleasure of the 



39-107 HEALTH AND SAFETY 128 

governor. Each member of the board shall be a citizen of the United 
States, a resident of the state of Idaho, and a qualified elector, and shall 
be appointed to assure appropriate geographic representation of the state 
of Idaho. Not more than four (4) members of the board shall be from any 
one (1) political party. Two (2) members of the board shall be chosen with 
due regard to their knowledge and interest in solid waste; two (2) 
members shall be chosen for their knowledge of and interest in air quality; 
two (2) members shall be chosen for their knowledge of and interest in 
water quality; and one (1) member shall be chosen with due regard for his 
knowledge of and interest in air, water and solid waste issues, 
(b) The members of the board of environmental quality shall be appointed 
for a term of four (4) years. In appointing members whose terms begin in 
2000, the governor shall designate three (3) members to be appointed for 
a term of three (3) years, two (2) members appointed for a term of four (4) 
years, and two (2) members appointed for a term of two (2) years. 
Successors to the members appointed for a term of less than four (4) years 
shall be appointed for a term of four (4) years thereafter. 

(2) The board annually shall elect a chairman, a vice chairman, and a 
secretary, and shall hold such meetings as may be necessary for the orderly 
conduct of its business, and such meetings shall be held from time to time on 
seventy-two (72) hours' notice of the chairman or a majority of the members. 
Five (5) members shall be necessary to constitute a quorum at any regular 
or special meeting and the action of the majority of members present shall 
be the action of the board. The members of the board shall be compensated 
as provided in section 59-509(h), Idaho Code. 

(3) The board, in furtherance of its duties under this act and under its 
rules, shall have the power to administer oaths, certify to official acts, and 
to issue subpoenas for the attendance of witnesses and the production of 
papers, books, accounts, documents and testimony. The board may, if a 
witness refuses to attend or testify, or to produce any papers required by 
such subpoenas, report to the district court in and for the county in which 
the proceeding is pending, by petition, setting forth that due notice has been 
given of the time and place of attendance of said witnesses, or the production 
of said papers, that the witness has been properly summoned, and that the 
witness has failed and refused to attend or produce the papers required by 
this subpoena before the board, or has refused to answer questions pro- 
pounded to him in the course of said proceedings, and ask an order of said 
court compelling the witness to attend and testify and produce said papers 
before the board. The court, upon the petition of the board, shall enter an 
order directing the witness to appear before the court at a time and place to 
be fixed by the court in such order, the time to be not more than ten (10) days 
from the date of the order, and then and there shall show cause why he has 
not attended and testified or produced said papers before the board. A copy 
of said order shall be served upon said witness. If it shall appear to the court 
that said subpoena was regularly issued by the board and regularly served, 
the court shall thereupon order that said witness appear before the board at 
the time and place fixed in said order, and testify or produce the required 
papers. Upon failure to obey said order, said witness shall be dealt with for 
contempt of court. 



129 ENVIRONMENTAL QUALITY — HEALTH 39-107 

(4) The director, his designee, or any party to the action may, in an 
investigation or hearing before the board, cause the deposition or interrog- 
atory of witnesses or parties residing within or without the state, to be taken 
in the manner prescribed by law for like depositions and interrogatories in 
civil actions in the district court of this state, and to that end may compel the 
attendance of said witnesses and production of books, documents, papers 
and accounts. 

(5) Any person aggrieved by an action or inaction of the department shall 
be afforded an opportunity for a fair hearing upon request therefor in 
writing pursuant to chapter 52, title 67, Idaho Code, and the rules 
promulgated thereunder. In those cases where the board has been granted 
the authority to hold such a hearing pursuant to a provision of the Idaho 
Code, the hearing may be conducted by the board at a regular or special 
meeting, or the board may designate hearing officers, who shall have the 
power and authority to conduct hearings in the name of the board at any 
time and place. In any hearing, a member of the board or hearing officer 
designated by it, shall have the power to administer oaths, examine 
witnesses, and issue in the name of the board subpoenas requiring the 
testimony of witnesses and the production of evidence relevant to any 
matter in the hearing. 

(6) Any person adversely affected by a final determination of the board, 
may secure judicial review by filing a petition for review as prescribed under 
the provisions of chapter 52, title 67, Idaho Code. The petition for review 
shall be served upon the chairman of the board, the director of the 
department, and upon the attorney general of the state of Idaho. Such 
service shall be jurisdictional and the provisions of this section shall be the 
exclusive procedure for appeal. 

(7) The board, by the affirmative vote of four (4) of its members, may 
adopt, amend or repeal the rules, codes, and standards of the department, 
that are necessary and feasible in order to carry out the purposes and 
provisions of this act and to enforce the laws of this state. 

The rules and orders so adopted and established shall have the force and 
effect of law and may deal with any matters deemed necessary and feasible 
for protecting the environment of the state. 

(8) All rulemaking proceedings and hearings of the board shall be 
governed by the provisions of chapter 52, title 67, Idaho Code. 

(9) The board shall adopt contested case rules that are consistent with 
the rules adopted by the attorney general under section 67-5206(4), Idaho 
Code, the provisions of this act and other statutory authority of the 
department. 

(10) All rules, permits and other actions heretofore adopted, issued or 
taken by the board of health and welfare pertaining to the environmental 
protection functions administered by the division of environmental quality 
shall remain in full force and effect until superseded. 

(11) The board of environmental quality shall be the successor to all 
rights, powers and duties of the board of health and welfare regarding all 
rulemaking proceedings, administrative proceedings, contested cases, civil 
actions, contracts, delegations, authority and other matters pertaining to 
environmental protection functions administered by the division of environ- 
mental quality. 



39-107A HEALTH AND SAFETY 130 

(12) Upon creation of the board of environmental quality, all pending 
business before the board of health and welfare relating to environmental 
protection functions administered by the division of environmental quality 
shall be transferred to and determined by the board of environmental 
quality 

History. § 32, p. 582; am. 1980, ch. 325, § 2, p. 820; 

1972, ch. 347, § 7, p. 1017; am. 1974, ch. 23, am. 1981, ch. 122, § 1, p. 208; am. 1993, ch. 

§ 51, p. 633; am. 1978, ch. 45, § 2, p. 80; am. 216, § 23, p. 587; am. 2000, ch. 132, § 10, p. 

1980, ch. 34, § 1, p. 57; am. 1980, ch. 247, 309. 

STATUTORY NOTES 

Cross References. Section 39 of S.L. 2000, ch. 132 provides: 

Attorney general, § 67-1401 et seq. «(i) This act shall be in full force and effect on 

Contempts, § 7-601 et seq. and after July ^ 2000> except ^ ^ Diyi _ 

Prior Laws. sion of Environmental Quality shall have one 

Former § 39-107 was repealed. See Prior (i) year thereafter to accomplish necessary 

aws ' S " ' changes to complete the physical transition to 

Compiler's Notes. the new department. 

The term "this act" in subsections (3) and «(2) Notwithstanding any other provisions 

(7) « fe li° ^■o^^^i 8 ^ of Chapter 52, Title 67, Idaho Code, the Ad- 
as §§ 39-101, 39-102, 39-105 to 39-107, 39- . . . .. « , ~ \. . , „ , . 

i no j on n ft j. oo 110 muiistrative Rules Coordinator shall redesig- 
108, and 39-110 to 39-113. „ „ ,, _.. . . „_ 

The term "this act" in subsection (9) refers nate * J references to the Division of Environ- 
to S.L. 2000, ch. 132, which is codified mental Quality which appear in the master 
throughout the Idaho Code. ru^database maintained by the coordinator, 

to the Department of Environmental Quality 

Effective Dates. without farther republication or promulga- 

Section 17 of S.L. 1972, ch. 347 provided tion, to comply with the provisions of this act. 

this act shall take effect from and after July 1, Until such time as a republication of a rule 

1972. occurs, any reference in a rule to the Division 

Section 11 of S.L. 1980, ch. 325 declared an of Environmental Quality shall mean the De- 
emergency Approved April 2, 1980. partment of Environmental Quality." 

39-107A. Real property in Bunker Hill cleanup site. — Notwith- 
standing any other provision of law to the contrary, the department may 
accept transfer from the United States of any real property or interest in 
real property acquired by the United States for remediation purposes 
concerning any operable unit of the Bunker Hill Superfund Site pursuant to 
42 U.S.C. section 9604(j). The state of Idaho shall incur no liability nor be 
subject to any claims related to the existence, release or threatened release 
of any hazardous substance or contaminant or pollutant on, or from, any 
such real property The department may, in its sole discretion, manage, lease 
or dispose of such property for the purpose of facilitating appropriate 
operation and maintenance activities, encouraging economic development 
or assisting local governmental entities within the site. The management, 
lease or disposal of such property shall not be subject to chapter 3, title 58, 
Idaho Code. Any receipts from the management, lease or disposal of such 
property shall be deposited in the Bunker Hill Cleanup Trust Fund 
established by the Trust Fund Declaration of the state of Idaho dated May 
2, 1994 (Attachment M, Consent Decree, United States of America v. Asarco, 
Inc. No. CV-94-0206-N-HLR (D. Idaho)) for the purpose of funding institu- 
tional control or operation and maintenance activities regarding the site. 



131 



ENVIRONMENTAL QUALITY — HEALTH 



39-107B 



History. 

I.C., § [39-107A] 39-107a, as added by 
1996, ch. 205, § 1, p. 629; am. 2000, ch. 21, 



§ 1, p. 41; am. 2000, ch. 132, § 11, p. 309; am. 
2009, ch. 8, § 1, p. 10. 



STATUTORY NOTES 



Prior Laws. 

Former § 39-107a, which comprised S.L. 
1973, ch. 87, § 5, was repealed by S.L. 1974, 
ch. 23, § 1. 

Amendments. 

This section was amended by two 2000 acts 
which appear to be compatible and have been 
compiled together. 

The 2000 amendment, by ch. 21, § 1, effec- 
tive March 3, 2000, in the present third sen- 
tence, substituted "The department" for "Any 
such real property which has a public use or 
commercial value and which is not useful or 
usable by the department", added "may, in its 
sole discretion, manage, lease or dispose of 
such property for the purpose of facilitating 
appropriate operation and maintenance activ- 
ities, encouraging economic development of 
the Silver Valley or assisting local govern- 
mental entities."; in the present fourth sen- 
tence, added "The management, lease or dis- 
posal of such property", inserted "not" 
preceding "be subject to", substituted "chap- 
ter 3, title 58" for "sections 58-331 through 
58-335", deleted ", except that any" following 
"Idaho Code"; in the last sentence, added 
"Any" preceding "receipts from", inserted 
"management, lease or" preceding "disposal of 
such property^, and substituted "Attachment 
M" for "Attachment N". 

The 2000 amendment, by ch. 132, § 1, 
effective July 1, 2000, deleted "of health and 



welfare" following "the department" in two 
places. 

The 2009 amendment, by ch. 8, in the first 
sentence, inserted "any operable unit of" and, 
in the third sentence, deleted "of the Silver 
Valley" following "economic development" and 
added "within the site." 

Effective Dates. 

Section 2 of S.L. 2000, ch. 21 declared an 
emergency. Approved March 3, 2000. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without farther republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality." 



39-107B. Department of environmental quality fund. — (1) There 
is hereby created a fund in the state treasury to be known as the department 
of environmental quality fund and all moneys deposited therein shall be 
available to be appropriated to the department of environmental quality for 
purposes for which the department was established. 

(2) All federal grants, fees for services, permitting fees, other program 
income and transfers from other funds subject to administration by the 
director of the department of environmental quality shall be placed in the 
fund provided that the statewide accounting and reporting system must 
provide for identification of the balance of each funding source within the 
fund. 

(3) The state controller shall make transfers to the fund from the general 
fund and any other funds appropriated to the department of environmental 
quality as requested by the director of the department and approved by the 
board of examiners. 



History. 

I.C., § 39-107B, as added by 2000, ch. 132, 
§ 12, p. 309. 



39-107C HEALTH AND SAFETY 132 

STATUTORY NOTES 

Cross References. "(2) Notwithstanding any other provisions 
State controller, § 67-1001 et seq. of Chapter 52, Title 67, Idaho Code, the Ad- 
Prior Laws ministrative Rules Coordinator shall redesig- 
Former § *39-107b, which comprised S.L. nate a11 references to the Division of Environ- 
1973, ch. 87, § 11, was repealed by S.L. 1974, mental Quality which appear in the master 
ch. 23, § 1. rule database maintained by the coordinator, 

to the Department of Environmental Quality 

Effective Dates. without further republication or promulga- 

Section 39 of S.L. 2000, ch. 132 provides: f . . „ „ i„™;+i, f*i.« «-«.^™-««- «p+i.;<. ««+ 

"(1) This act shall be in full force and effect on J? ° n > to "F^ Wlth the Prions of this act. 
and after July 1, 2000, except that the Divi- Untl1 such time as a republication of a rule 
sion of Environmental Quality shall have one °^ s '. an ^ reference ^ a rule to the Division 
(1) year thereafter to accomplish necessary of Environmental Quality shall mean the De- 
changes to complete the physical transition to Payment of Environmental Quality, 
the new department. 

39-107C. Environmental protection trust fund established. — 

The director of the department of environmental quality may receive on 
behalf of the department any moneys or real or personal property donated, 
bequeathed, devised or conditionally granted to the department. Moneys 
received directly or derived from the sale of such property shall be deposited 
by the state treasurer in a special fund to be known as the environmental 
protection trust fund which is hereby established, reserved, set aside, 
appropriated and made available until expended and used and adminis- 
tered to carry out the terms and conditions of such donation, bequest, devise 
or grant. Pending such expenditure or use, surplus moneys in the environ- 
mental protection trust fund shall be invested by the state treasurer in the 
manner provided for idle state moneys in the state treasury by section 
67-1210, Idaho Code. Interest received on all such investments shall be paid 
into the environmental protection trust fund. 

History. 

I.C., § 39-107C, as added by 2000, ch. 132, 
§ 13, p. 309. 

STATUTORY NOTES 

Effective Dates. nate all references to the Division of Environ- 

Section 39 of S.L. 2000, ch. 132 provides: mental Quality which appear in the master 

"(1) This act shall be in full force and effect on ^g database maintained by the coordinator, 

and after July 1, 2000 except that the Divi- to the Department of Environmental Quality 

sion of Environmental Quality shall have one ..* . £«+!,„ ™ ur„,^™ «,. ^ n «,„u 

(1) year thereafter to Accomplish necessary ™ th ° ut tar ^ a ^publication or promulga- 

changes to complete the physical transition to J"" 1 ' to <*?& ™ th the Provisions of this act. 

the new department. Until such time as a republication of a rule 

"(2) Notwithstanding any other provisions occurs, any reference in a rule to the Division 

of Chapter 52, Title 67, Idaho Code, the Ad- of Environmental Quality shall mean the De- 

ministrative Rules Coordinator shall redesig- partment of Environmental Quality." 

39-107D. Rules of department or board. — (1) The legislature 
directs that any rule formulated and recommended by the department to the 
board which is broader in scope or more stringent than federal law or 
regulations, or proposes to regulate an activity not regulated by the federal 
government, is subject to the following additional requirements: the notice 
of proposed rulemaking and rulemaking record requirements under chapter 



133 ENVIRONMENTAL QUALITY — HEALTH 39-107D 

52, title 67, Idaho Code, must clearly specify that the proposed rule, or 
portions of the proposed rule, are broader in scope or more stringent than 
federal law or regulations, or regulate an activity not regulated by the 
federal government, and delineate which portions of the proposed rule are 
broader in scope or more stringent than federal law or regulations, or 
regulate an activity not regulated by the federal government. 

(2) To the degree that a department action is based on science, in 
proposing any rule or portions of any rule subject to this section, the 
department shall utilize: 

(a) The best available peer reviewed science and supporting studies 
conducted in accordance with sound and objective scientific practices; and 

(b) Data collected by accepted methods or best available methods if the 
reliability of the method and the nature of the decision justify use of the 
data. 

(3) Any proposed rule subject to this section which proposes a standard 
necessary to protect human health and the environment shall also include 
in the rulemaking record requirements under chapter 52, title 67, Idaho 
Code, the following additional information: 

(a) Identification of each population or receptor addressed by an estimate 
of public health effects or environmental effects; and 

(b) Identification of the expected risk or central estimate of risk for the 
specific population or receptor; and 

(c) Identification of each appropriate upper bound or lower bound esti- 
mate of risk; and 

(d) Identification of each significant uncertainty identified in the process 
of the assessment of public health effects or environmental effects and any 
studies that would assist in resolving the uncertainty; and 

(e) Identification of studies known to the department that support, are 
directly relevant to, or fail to support any estimate of public health effects 
or environmental effects and the methodology used to reconcile inconsis- 
tencies in the data. 

(4) The department shall also include a summary of the information 
required by subsection (3) of this section in the notice of rulemaking 
required by chapter 52, title 67, Idaho Code. 

(5) Any rule promulgated or adopted by the board which is broader in 
scope or more stringent than federal law or regulations, or which regulates 
an activity not regulated by the federal government, submitted to the 
standing committee of the legislature pursuant to section 67-5291, Idaho 
Code, shall include a notice by the board identifying the portions of the 
adopted rule that are broader in scope or more stringent than federal law or 
rules, or which regulate an activity not regulated by the federal government. 

(6) Nothing provided herein is intended to alter the scope or effect of 
sections 39-105(3)(g)(v), 39-118B, 39-3601, 39-4404, 39-7210 and 39-7404, 
Idaho Code, or any other provision of state law which limits or prohibits 
agency action or rulemaking that is broader in scope or more stringent than 
federal law or regulations. 

History. § 1, p. 405; am. 2003, ch. 259, § 1, p. 682; am. 

I.C., § 39-107D, as added by 2002, ch. 144, 2007, ch. 83, § 3, p. 221. 



39-108 HEALTH AND SAFETY 134 

STATUTORY NOTES 

Amendments. "39-6205" following "39-4404" in subsection 

The 2007 amendment, by ch. 83, deleted (6). 

39-108. Investigation — Inspection — Right of entry — Violation 
— Enforcement — Penalty — Injunctions. — (1) The director shall 
cause investigations to be made upon receipt of information concerning an 
alleged violation of this act or of any rule, permit or order promulgated 
thereunder, and may cause to be made such other investigations as the 
director shall deem advisable. 

(2) For the purpose of enforcing any provision of this chapter or any rule 
authorized in this chapter, the director or the director's designee shall have 
the authority to: 

(a) Conduct a program of continuing surveillance and of regular or 
periodic inspection of actual or potential environmental hazards, air 
contamination sources, water pollution sources, and of solid waste dis- 
posal sites; 

(b) Enter at all reasonable times upon any private or public property, 
upon presentation of appropriate credentials, for the purpose of inspect- 
ing or investigating to ascertain possible violations of this act or of rules, 
permits or orders adopted and promulgated by the director or the board; 

(c) All inspections and investigations conducted under the authority of 
this chapter shall be performed in conformity with the prohibitions 
against unreasonable searches and seizures contained in the fourth 
amendment to the constitution of the United States and section 17, article 
I, of the constitution of the state of Idaho. The state shall not, under the 
authority granted by this chapter, conduct warrantless searches of private 
property in the absence of either consent from the property owner or 
occupier or exigent circumstances such as a public health or environmen- 
tal emergency; 

(d) Any district court in and for the county in which the subject property 
is located is authorized to issue a search warrant to the director upon a 
showing of (i) probable cause to suspect a violation, or (ii) the existence of 
a reasonable program of inspection. Any search warrant issued under the 
authority of this chapter shall be limited in scope to the specific purposes 
for which it is issued and shall state with specificity the manner and the 
scope of the search authorized. 

(3) Whenever the director determines that any person is in violation of 
any provision of this act or any rule, permit or order issued or promulgated 
pursuant to this act, the director may commence either of the following: 

(a) Administrative Enforcement Action. 
(i) Notice. The director may commence an administrative enforcement 
action by issuing a written notice of violation. The notice of violation 
shall identify the alleged violation with specificity, shall specify each 
provision of the act, rule, regulation, permit or order which has been 
violated, and shall state the amount of civil penalty claimed for each 
violation. The notice of violation shall inform the person to whom it is 
directed of an opportunity to confer with the director or the director's 
designee in a compliance conference concerning the alleged violation. A 



135 ENVIRONMENTAL QUALITY — HEALTH 39-108 

written response may be required within fifteen (15) days of receipt of 
the notice of violation by the person to whom it is directed, 
(ii) Scheduling compliance conference. If a recipient of a notice of 
violation contacts the department within fifteen (15) days of the receipt 
of the notice, the recipient shall be entitled to a compliance conference. 
The conference shall be held within twenty (20) days of the date of 
receipt of the notice, unless a later date is agreed upon between the 
parties. If a compliance conference is not requested, the director may 
proceed with a civil enforcement action as provided in paragraph (b) of 
this subsection. 

(iii) Compliance conference. The compliance conference shall provide 
an opportunity for the recipient of a notice of violation to explain the 
circumstances of the alleged violation and, where appropriate, to 
present a proposal for remedying damage caused by the alleged viola- 
tion and assuring future compliance. 

(iv) Consent order. If the recipient and the director agree on a plan to 
remedy damage caused by the alleged violation and to assure future 
compliance, they may enter into a consent order formalizing their 
agreement. The consent order may include a provision providing for 
payment of any agreed civil penalty. 

(v) Effect of consent order. A consent order shall be effective immedi- 
ately upon signing by both parties and shall preclude any civil enforce- 
ment action for the same alleged violation. If a party does not comply 
with the terms of the consent order, the director may seek and obtain, 
in any appropriate district court, specific performance of the consent 
order and such other relief as authorized in this chapter. 
(vi) Failure to reach consent order. If the parties cannot reach agree- 
ment on a consent order within sixty (60) days after the receipt of the 
notice of violation or if the recipient does not request a compliance 
conference as per paragraph (a)(ii) of this section, the director may 
commence and prosecute a civil enforcement action in district court, in 
accordance with subsection (b) of this section, 
(b) Civil enforcement action. The director may initiate a civil enforcement 
action through the attorney general as provided in section 39-109, Idaho 
Code. Civil enforcement actions shall be commenced and prosecuted in the 
district court in and for the county in which the alleged violation occurred, 
and may be brought against any person who is alleged to have violated 
any provision of this act or any rule, permit or order which has become 
effective pursuant to this act. Such action may be brought to compel 
compliance with any provision of this act or with any rule, permit or order 
promulgated hereunder and for any relief or remedies authorized in this 
act. The director shall not be required to initiate or prosecute an 
administrative action before initiating a civil enforcement action. 

(4) No civil or administrative proceeding may be brought to recover for a 
violation of any provision of this chapter or a violation of any rule, permit or 
order issued or promulgated pursuant to this chapter, more than two (2) 
years after the director had knowledge or ought reasonably to have had 
knowledge of the violation. 

(5) Monetary penalties. 



39-108 HEALTH AND SAFETY 136 

(a) Any person determined in a civil enforcement action to have violated 
any provision of this act or any rule, permit or order promulgated 
pursuant to this act shall be liable for a civil penalty not to exceed ten 
thousand dollars ($10,000) per violation or one thousand dollars ($1,000) 
for each day of a continuing violation, whichever is greater or ten 
thousand dollars ($10,000) for each separate air violation and day of 
continuing air violation. The method of recovery of said penalty shall be 
by a civil enforcement action in the district court in and for the county 
where the violation occurred. All civil penalties collected under this act 
shall be paid into the general fund of the state. Parties to an administra- 
tive enforcement action may agree to a civil penalty as provided in this 
subsection. 

(b) The imposition or computation of monetary penalties may take into 
account the seriousness of the violation, good faith efforts to comply with 
the law, and an enforceable commitment by the person against whom the 
penalty is directed to implement a supplemental environmental project. 
For purposes of this section, "supplemental environmental project" means 
a project which the person is not otherwise required to perform and which 
prevents pollution, reduces the amount of pollutants reaching the envi- 
ronment, contributes to public awareness of environmental matters, or 
enhances the quality of the environment. In evaluating a particular 
supplemental environmental project proposal, preference may be given to 
those projects with an environmental benefit which relate to the violation 
or the objectives of the underlying statute which was violated or which 
enhances the quality of the environment in the general geographic 
location where the violation occurred. 

(6) In addition to such civil penalties, any person who has been deter- 
mined to have violated the provisions of this act or the rules, permits or 
orders promulgated thereunder, shall be liable for any expense incurred by 
the state in enforcing the act, or in enforcing or terminating any nuisance, 
source of environmental degradation, cause of sickness, or health hazard. 

(7) No action taken pursuant to the provisions of this act or of any other 
environmental protection law shall relieve any person from any civil action 
and damages that may exist for injury or damage resulting from any 
violation of this act or of the rules, permits and orders promulgated 
thereunder. 

(8) In addition to, and notwithstanding other provisions of this act, in 
circumstances of emergency creating conditions of imminent and substan- 
tial danger to the public health or environment, the prosecuting attorney or 
the attorney general may institute a civil action for an immediate injunction 
to halt any discharge, emission or other activity in violation of provisions of 
this act or rules, permits and orders promulgated thereunder. In such action 
the court may issue an ex parte restraining order. 

History. 1993, ch. 275, § 5, p. 926; am. 1997, ch. 94, 

1972, ch. 347, § 8, p. 1017; am. 1974, ch. 23, § 2, p. 219; am. 2000, ch. 132, § 16, p. 309. 
§ 52, p. 633; am. 1986, ch. 60, § 2, p. 169; am. 



137 



ENVIRONMENTAL QUALITY — HEALTH 
STATUTORY NOTES 



39-109 



Cross References. 

Attorney general, § 67-1401 et seq. 

Prior Laws. 

Former § 39-108 was repealed. See Prior 
Laws, § 39-101. 

Compiler's Notes. 

The term "this act" in subsection (1), subdi- 
vision (2)(b), subdivision (5)(a), subsection (6), 
the first sentence in subsection (7), and sub- 
section (8), refer to S.L. 1972, ch. 347, which is 
codified as §§ 39-101, 39-102, 39-105 to 39- 
107, 39-108, and 39-110 to 39-113. 

The term "this act" in the introductory 
paragraph in subsection (3), in subdivision 
(3)(b), and in the second sentence in subsec- 
tion (7), refers to S.L. 1986, ch. 60, which is 
codified as §§ 39-101, 39-108 to 39-111, 39- 
116, 39-117, and 39-118. 



Effective Dates. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without further republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality." 



Expense. 

Limitation on actions. 



JUDICIAL DECISIONS 

Analysis 



Expense. 

The phrase "any expense" in this section 
was not intended to include attorney fees. 
Idaho Dep't of Health & Welfare v. Southfork 
Lumber Co., 123 Idaho 146, 845 P.2d 564 
(1993). 

The legislature has made it clear that an 
award of expenses under this chapter is man- 
datory and unqualified, stating that a person 
who violates the act "shall be liable for any 
expense." By using the term "any expense" 
rather than "costs", the legislature appar- 
ently intended a more extensive recovery of 
costs than is contemplated by § 12-101 and 
Idaho R. Civ. P. 54(d)(1). For this reason, the 
trial court should consider a request for costs 



according to subsection (6) of this section 
rather than Idaho R. Civ. P. 54(d)(1). Idaho 
Dep't of Health & Welfare v. Southfork Lum- 
ber Co., 123 Idaho 146, 845 P.2d 564 (1993). 

Limitation on Actions. 

Since this chapter does not provide its own 
statute of limitation, the four-year limitation 
provided by § 5-224 applies to actions 
brought under it. Aetna Cas. & Sur. Co. v. 
Gulf Resources & Chem. Corp., 600 F. Supp. 
797 (D. Idaho 1985). 



Cited in: Idaho v. Bunker Hill Co. 
Supp. 665 (D. Idaho 1986). 



635 F. 



39-109. Commencement of civil enforcement actions — Criminal 
actions authorized — Duties of attorney general. — Upon request of 
the director, it shall be the duty of the attorney general to institute and 
prosecute civil enforcement actions or injunctive actions as provided in 
section 39-108, Idaho Code, and to prosecute actions or proceedings for the 
enforcement of any criminal provisions of this chapter. In addition, when 
deemed by the director to be necessary, the director may retain or employ 
private counsel. The attorney general may delegate the authority and duty 
under this section to prosecute criminal actions to the prosecuting attorney 
of the county in which such a criminal action may arise. 



39-110 



HEALTH AND SAFETY 



138 



History. 

I.C., § 39-109, as added by 1986, ch. 60, 
§ 4, p. 169; am. 2000, ch. 132, § 17, p. 309. 



STATUTORY NOTES 



Cross References. 

Attorney general, 



67-1401 et seq. 



Prior Laws. 

Former § 39-109, which comprised S.L. 
1972, ch. 347, § 9, p. 1017; am. 1974, ch. 23, 
§ 53, p. 633, was repealed by S.L. 1986, ch. 
60, § 3. 

Another former § 39-109 was repealed. See 
Prior Laws, § 39-101. 

Effective Dates. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 



changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without further republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality" 



39-110. Registration of persons engaged in operations or con- 
struction where air pollution is a factor — Reports. — The director 
may require the registration of persons engaged in operations which may- 
result in air pollution, and of persons causing, permitting or allowing 
construction of any facility or new equipment capable of emitting air 
contaminants into the atmosphere, or designed to eliminate or reduce 
emissions into the atmosphere, and the filing of reports by them with the 
department relating to locations, size of outlet, height of outlet, rate and 
period of emission and composition of effluent, and such other information 
as the director shall prescribe relative to air pollution. 



History. 60, § 5, 

1972, ch. 347, § 10, p. 1017; am. 1986, ch. 309. 



p. 169; am. 2000, ch. 132, § 18, p. 



STATUTORY NOTES 



Prior Laws. 

Former § 39-110 was repealed. See Prior 
Laws, § 39-101. 

Effective Dates. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 



of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without further republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality." 



39-111. Availability of records. — Any records or other information 
furnished to the board, department or to agents, contractors, or other 
representatives of the department under any provisions of this chapter shall 
be subject to disclosure according to chapter 3, title 9, Idaho Code. 



139 ENVIRONMENTAL QUALITY — HEALTH 39-112 

History. am. 1990, ch. 213, § 34, p. 480; am. 1998, ch. 

1972, ch. 347, § 11, p. 1017; am. 1974, ch. 125, § 2, p. 461; am. 2000, ch. 132, § 19, p. 
23, § 54, p. 633; am. 1986, ch. 60, § 6, p. 169; 309. 

STATUTORY NOTES 

Prior Laws. (1) year thereafter to accomplish necessary 

Former § 39-111 was repealed. See Prior changes to complete the physical transition to 

Laws, § 39-101. the new department. 
Effective Dates. "(2) Notwithstanding any other provisions 

Section 111 of S.L. 1990, ch. 213 as of Chapter 52, Title 67, Idaho Code, the Ad- 
amended by § 16 of S.L. 1991, ch. 329 pro- ministrative Rules Coordinator shall redesig- 
vided that §§ 3 through 45 and 48 through nate all references to the Division of Environ- 
110 of the act should take effect July 1, 1993 mental Quality which appear in the master 
and that §§ 1, 2, 46 and 47 should take effect rule database maintained by the coordinator, 
July 1, 1990. to the Department of Environmental Quality 

Section 5 of S.L. 1998, ch. 125 declared an without further republication or promulga- 

emergency Approved March 19, 1998 tion, to comply with the provisions of this act. 

Section 39 of S.L. 2000, ch. 132 provides: Until such time as a republication of a rule 

"(1) This act shall be in full force and effect on occurs, any reference in a rule to the Division 

and after July 1, 2000, except that the Divi- of Environmental Quality shall mean the De- 

sion of Environmental Quality shall have one partment of Environmental Quality." 

39-112. Emergency — Order — Hearing — Modification, affir- 
mance, or setting aside. — (1) Any other provision of law to the contrary 
notwithstanding, if the director finds that a generalized condition of air 
pollution exists and that it creates an imminent and substantial endanger- 
ment to the public health or welfare constituting an emergency requiring 
immediate action to protect human health or safety, the director, with the 
concurrence of the governor as to the existence of such an emergency shall 
order persons causing or contributing to the air pollution to reduce or 
discontinue immediately the emission of air contaminants, and such order 
shall fix a time and place, not later than twenty-four (24) hours thereafter, 
for a hearing to be held before the director. Not more than twenty-four (24) 
hours after the commencement of such hearing, and without adjournment 
thereof, the director shall affirm, modify or set aside its order. 

(2) In the absence of a generalized condition of air pollution of the type 
referred to in subsection (1) of this section, if the director finds that 
emissions from the operation of one (1) or more air contaminant sources is 
causing imminent and substantial danger to human health or safety the 
director may bring suit through the attorney general in the appropriate 
district court to immediately restrain any person causing or contributing to 
the alleged pollution to stop the emission of air pollutants causing or 
contributing to such pollution. If it is not practicable to assure prompt 
protection of public health or welfare or the environment by commencement 
of such civil action, the director may order the person or persons responsible 
for the operation or operations in question to reduce or discontinue emis- 
sions immediately without regard to other provisions of this act. In such 
event, the requirements for hearing and affirmance, modification or setting 
aside of an order set forth in subsection (1) of this section shall apply. For 
purposes of subsections (1) and (2) of this section, imminent and substantial 
endangerment or danger shall be interpreted no more broadly than these 
words are interpreted under section 303 of the clean air act, 42 USC 7603. 



39-113 



HEALTH AND SAFETY 



140 



(3) Nothing in this section shall be construed to limit any power which 
the governor or any other officer may have to declare an emergency and act 
on the basis of such declaration, if such power is conferred by statute or 
constitutional provision, or inheres in the office. 

History. 

1972, ch. 347, § 12, p. 1017; am. 2000, ch. 
132, § 20, p. 309. 

STATUTORY NOTES 



Cross References. 

Attorney general, § 67-1401 et seq. 

Prior Laws. 

Former § 39-112 was repealed. See Prior 
Laws, § 39-101. 

Compiler's Notes. 

The term "this act" in subsection (2) refers 
to S.L. 1972, ch. 347, which is codified as 
§§ 39-101, 39-102, 39-105 to 39-107, 39-108, 
and 39-110 to 39-113. 

Effective Dates. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 



(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without further republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality." 



39-113. Transfer of employees. — All employees of the division of 
environmental quality and the INEEL oversight program of the department 
of health and welfare are transferred to the department of environmental 
quality. Such transfer shall in no manner affect the rights or privileges of 
any transferred employee under the public employee retirement system 
(chapter 13, title 59, Idaho Code), the group insurance plan (chapter 12, title 
59, Idaho Code), or personnel system (chapter 53, title 67, Idaho Code). 
Additionally, when the department of health and welfare is used in terms of 
environmental protection, it shall mean the department of environmental 
quality. 

History. 

1972, ch. 347, § 15, p. 1017; am. 2000, ch. 
132, § 21, p. 309. 

STATUTORY NOTES 



Prior Laws. 

Former § 39-113 was repealed. See Prior 
Laws, § 39-101. 

Compiler's Notes. 

Chapter 12, title 59, Idaho Code, referred to 
in this section, has been repealed and redes- 
ignated. See §§ 67-5761 to 67-5771 for group 
insurance plans. 

Effective Dates. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 



and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 



141 ENVIRONMENTAL QUALITY — HEALTH 39-114 

without further republication or promulga- occurs, any reference in a rule to the Division 
tion, to comply with the provisions of this act. of Environmental Quality shall mean the De- 
Until such time as a republication of a rule partment of Environmental Quality." 

39-114. Open burning of crop residue. — (1) The open burning of 
crop residue to develop physiological conditions conducive to increase crop 
yields, or to control diseases, insects, pests or weed infestations shall be an 
allowable form of open burning, such that it is expressly authorized as 
referenced in section 52-108, Idaho Code, so long as the open burning is 
conducted in accordance with the provisions of this section and the rules 
promulgated pursuant to this chapter. 

(2) Crop residue means any vegetative material remaining in the field 
after harvest or vegetative material produced on designated conservation 
reserve program (CRP) lands. 

(3) The open burning of crop residue shall be conducted in the field where 
it was generated. A burn may not take place without preapproval from the 
department. The department shall not approve a burn if it determines that 
ambient air quality levels: 

(a) Are exceeding, or are expected to exceed, seventy-five percent (75%) of 
the level of any national ambient air quality standard on any day, and 
these levels are projected to continue or recur over at least the next 
twenty-four (24) hours; or 

(b) Have reached, or are forecasted to reach and persist at, eighty percent 
(80%) of the one (1) hour action criteria for particulate matter pursuant to 
section 556 of IDAPA 58.01.01, rules for the control of air pollution in 
Idaho. 

The department shall make available to the public, prior to the burn, 
information regarding the date of the burn, location, acreage and crop type 
to be burned. If the agricultural community desires to burn more than 
twenty thousand (20,000) acres annually of bluegrass within the state, that 
does not include Indian or tribal lands within the reservation boundaries as 
recognized by the federal clean air act, then, prior to approving the burning 
of the additional acres, the department shall complete an air quality review 
analysis to determine that the ambient air quality levels in this section will 
be met. 

(4) A fee in an amount of two dollars ($2.00) per acre to be burned shall 
be paid to the department prior to burning. This fee shall not apply to 
propane flaming, as defined in the rules promulgated pursuant to this 
chapter. The department shall remit all fees quarterly to the state treasurer, 
who shall deposit the moneys in the general fund. 

History. 

I.C., § 39-114, as added by 2008, ch. 71, 
§ 1, p. 186; am. 2011, ch. 51, § 1, p. 115. 

STATUTORY NOTES 

Prior Laws. ch. 347, § 16, p. 1017; am. 1974, ch. 23, § 55, 

Former § 39-114, which comprised 1972, p. 633, was repealed by S.L. 2000, ch. 132, 



39-115 HEALTH AND SAFETY 142 

§ 22, effective July 1, 2000. last paragraph of subsection (3), is codified as 

Another former § 39-114 was repealed. See 42 U.S.C.S. § 7401 et seq. 

Prior Laws, § 39-101. 

Compiler's Notes. 

Amendments. The letters "CRP" enclosed in parentheses 

The 2011 amendment, by ch. 51, inserted so appeared in the law as enacted. 

the second sentence in subsection (4). -^ . ^ 

Effective Dates. 

Federal References. Section 6 of S.L. 2008, ch. 71 declared an 

The federal clean air act, referred to in the emergency. Approved March 7, 2008. 

JUDICIAL DECISIONS 

Decisions Under Prior Law 

Constitutionality. agreed. The amendments did not act as an 

Plaintiffs, asserting sensitivity to grass unconstitutional taking of property, and they 

smoke, asserted that the burning of grass by were not an unconstitutional special and local 

seed growers constituted a trespass and a law. Moon v. N. Idaho Farmers Ass'n, 140 

nuisance and that the immunity granted to Idaho 536, 96 P3d 637 (2004), cert, denied, 

the seed growers under a former law was 543 U.S. 1146, 125 S. Ct. 1299, 161 L. Ed. 2d 

unconstitutional. The supreme court dis- 106 (2005). 

39-115. Pollution source permits. — 

(l)(a) The director shall have the authority to issue pollution source 
permits in compliance with rules established hereunder, 
(b) To determine the applicability of permit requirements for any major or 
minor air pollution source in Idaho, the department shall develop and 
recommend to the board for adoption, rules that define "regulated air 
pollutant" as follows: 
(i) For purposes of a major source permit to operate issued or modified 
by the department in accordance with title V of the federal clean air act 
amendments of 1990, "regulated air pollutant" shall have the same 
meaning as in title V of the federal clean air act amendments of 1990, 
and any applicable federal regulations promulgated pursuant to title V 
of the federal clean air act amendments of 1990; 

(ii) For purposes of any other operating permit issued or modified by 
the department, the federal definition of "regulated air pollutant" as 
defined in subsection (l)(b)(i) of this section shall also apply; 
(iii) For purposes of any permit to construct issued or modified by the 
department pursuant to part D of subchapter I of the federal clean air 
act, "regulated air pollutant" shall mean those air contaminants that 
are regulated pursuant to part D of subchapter I of the federal clean air 
act and applicable federal regulations promulgated pursuant to part D 
of subchapter I of the federal clean air act; and 

(iv) For purposes of major source compliance with 42 U.S.C. section 
7412(g) and (i)(l), "regulated air pollutant" shall mean those air 
contaminants that are listed pursuant to 42 U.S.C. section 7412(b); and 
(v) For purposes of any other major or minor permit to construct issued 
or modified by the department, "regulated air pollutant" shall mean 
those air contaminants that are regulated pursuant to part C of 
subchapter I of the federal clean air act and any applicable federal 
regulations promulgated pursuant to part C of subchapter I of the 
federal clean air act. 



143 ENVIRONMENTAL QUALITY — HEALTH 39-115 

(c) To determine the applicability of any permit to construct or permit to 
operate requirement to any air pollution source in Idaho, fugitive emis- 
sions shall not be included in any applicability calculation, unless re- 
quired by 42 U.S.C. section 7401 et seq. or any implementing regulation 
promulgated thereunder. The director shall develop and the board shall 
adopt rules that provide that, for both major and minor source permit 
applicability determinations, fugitive emissions shall be included only as 
required by 42 U.S.C. section 7401 et seq. or any implementing regulation 
promulgated thereunder. 

(d) The director shall develop and recommend to the board for adoption 
through rulemaking, criteria to determine insignificant activities and 
such sources or modification with emissions at or below the de minimis 
level which shall not require either a permit to construct or a permit to 
operate; provided however, that a registration of the activities or sources 
may be required. 

(2) The director shall have the authority to sue in competent courts to 
enjoin any threatened or continuing: 

(a) Violations of pollution source permits or conditions thereof without 
the necessity of a prior revocation of the permit; or 

(b) Construction of an industrial or commercial air pollution source 
without a permit required under this chapter or rules adopted hereunder. 

(3) The department is authorized to charge and collect a fee for processing 
applications for industrial or commercial air pollution source permits in 
accordance with a fee schedule established by the board pursuant to this 
chapter. For fees charged for operating permits under title V of the federal 
clean air act amendments of 1990, the department shall not charge a fee on 
any hazardous air pollutant other than those listed under section 112 of the 
federal clean air act. The fee schedule shall be structured to provide an 
incentive for emission reduction. 

(4) The director may issue air emission source permits to construct a 
facility to incinerate any waste or waste item contaminated with 
polychlorinated biphenyls (PCBs) only if the director finds: 

(a) The facility will not be sited in complex valley terrain where the valley 
floor is less than five (5) miles wide and the valley walls rise more than 
one thousand (1,000) feet; 

(b) The facility has complied with local planning and zoning require- 
ments; 

(c) There has been an opportunity for public participation; and 

(d) The facility will employ best available technology and instrumenta- 
tion. 

Subsection (4) of this section shall not apply to incineration activities 
existing on or before January 1, 1987. 

History. § 2, p. 411; am. 1993, ch. 275, § 6, p. 926; am. 

I.C., § 39-115, as added by 1973, ch. 138, 2000, ch. 132, § 23, p. 309; am. 2005, ch. 292, 

§ 1, p. 269; am. 1974, ch. 23, § 56, p. 633; am. § 2 , p. 929; am. 2005, ch. 324, § 1, p. 994. 
1987, ch. 135, § 1, p. 269; am. 1987, ch. 198, 



39-116 



HEALTH AND SAFETY 



144 



STATUTORY NOTES 



Prior Laws. 

Former § 39-115 was repealed. See Prior 
Laws, § 39-101. 

Legislative Intent. 

Section 1 of S.L. 2005, ch. 292 provided 
"Statement of Legislative Intent. The defini- 
tion of 'regulated air pollutant' for purposes of 
determining whether permit to construct or 
permit to operate requirements apply, was 
intended to comply with but not exceed fed- 
eral clean air act requirements. The Legisla- 
ture intends that the Department of Environ- 
mental Quality uniformly apply Idaho law in 
an effort to conform with but not differ from 
federal definitions of regulated air pollutants. 
Nevertheless, the United States District 
Court for Idaho has applied portions of rules 
of the Department of Environmental Quality 
for air pollution in a manner which substan- 
tially exceeds federal requirements. This act 
is meant to clarify that Idaho law in this 
regard has always been intended to comply 
with but not exceed federal law and should 
not be construed as a change in the law, but 
rather a clarification of what the existing law 
has consistently meant." 

Federal References. 

Title V of the federal clean air act, referred 
to in subdivision (l)(b)(i) and subsection (3), is 
compiled as 42 USCS § 7661 et seq. 

Part D of subchapter I of the federal clean 
air act, referred to in subdivision (l)(b)(iii), is 
codified as 42 USCS § 7501 et seq. 

Part C of subchapter I of the federal clean 
air act, referred to in subdivision (l)(b)(v), is 
codified as 42 USCS § 7470 et seq. 

Section 112 of the federal clean air act, 
referred to in subsection (3), is compiled as 42 
USCS § 7412 et seq. 



Compiler's Notes. 

Section 2 of S.L. 1973, ch. 138 read: "The 
provisions of this act are hereby declared to be 
severable and if any provisions of this act or 
the application of such provisions to any per- 
son or circumstances is declared invalid for 
any reason, such declaration shall not affect 
the validity of remaining portions of this act." 

The letters "PCBs" enclosed in parentheses 
so appeared in the law as enacted. 

Effective Dates. 

Section 3 of S.L. 1973, ch. 138 declared an 
emergency Approved March 15, 1973. 

Section 3 of S.L. 1987, ch. 198 declared an 
emergency. Approved March 31, 1987. 

Section 39 of S.L. 2000, ch. 132 provides: 
"(1) This act shall be in full force and effect on 
and after July 1, 2000, except that the Divi- 
sion of Environmental Quality shall have one 
(1) year thereafter to accomplish necessary 
changes to complete the physical transition to 
the new department. 

"(2) Notwithstanding any other provisions 
of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 
nate all references to the Division of Environ- 
mental Quality which appear in the master 
rule database maintained by the coordinator, 
to the Department of Environmental Quality 
without further republication or promulga- 
tion, to comply with the provisions of this act. 
Until such time as a republication of a rule 
occurs, any reference in a rule to the Division 
of Environmental Quality shall mean the De- 
partment of Environmental Quality." 



39-116. Compliance schedules. — The director shall have the author- 
ity to issue compliance schedule orders to any person who is the source of 
any health hazard, air contaminant, water pollution or solid waste for which 
regulatory standards have been established, including regulatory standards 
then in effect or to become effective at a future date or at future successive 
dates. The purpose of any compliance schedule order shall be to identify and 
establish appropriate acts and time schedules for interim actions by those 
persons who are or who will be affected by regulatory standards, such acts 
and schedules being designed to assure timely compliance by those affected 
by the regulatory standards. Prior to the issuance of a compliance schedule 
order, the director shall solicit the cooperation of the person to whom the 
compliance schedule order will be directed by providing the person notice 
that identifies with reasonable specificity the applicable statutes and rules, 
the events or occurrences that necessitate the order, and the proposed terms 
of the order and that informs the person that a conference with the director 
to discuss the proposed terms of the order shall be provided if requested 
within fifteen (15) days of receipt of the notice. If requested, the director 
shall confer with the person and shall solicit the person's cooperation in the 



145 ENVIRONMENTAL QUALITY — HEALTH 39-116A 

selection of the terms of the order. The compliance schedule order may be 
issued at any time after the conference, if one is requested, and the 
expiration of sixty (60) days following the receipt of the notice. Any 
compliance schedule order shall be enforceable in the same manner as any 
order entered pursuant to section 39-108, Idaho Code, except the order may 
be challenged by an administrative appeal to the board as provided in 
section 39-107(5), Idaho Code. The order shall be effective and enforceable 
during an administrative appeal, unless the board or its designated hearing 
officer issues a stay of the order. 

History. 1986, ch. 60, § 7, p. 169; am. 2000, ch. 132, 

I.C., § 39-116, as added by 1973, ch. 139, § 24, p. 309. 
§ 1, p. 270; am. 1974, ch. 23, § 57, p. 633; am. 

STATUTORY NOTES 

Prior Laws. "(2) Notwithstanding any other provisions 
Former § 39-116 was repealed. See Prior f Chapter 52, Title 67, Idaho Code, the Ad- 
Laws, § 39-101. ministrative Rules Coordinator shall redesig- 
Effective Dates. nate all references to the Division of Environ- 
Section 2 of S.L. 1973, ch. 139 declared an mental Quality which appear in the master 
emergency. Approved March 15, 1973. rule database maintained by the coordinator, 
Section 39 of S.L. 2000, ch. 132 provides: to the Department of Environmental Quality 
"(1) This act shall be in full force and effect on without further republication or promulga- 
and after July 1, 2000, except that the Divi- tion, to comply with the provisions of this act. 
sion of Environmental Quality shall have one Until such time as a republication of a rule 
(1) year thereafter to accomplish necessary occurs, any reference in a rule to the Division 
changes to complete the physical transition to of Environmental Quality shall mean the De- 
the new department. partment of Environmental Quality." 

39-116A. Compliance agreement schedules. — (1) The director is 
hereby authorized to enter into a compliance agreement schedule with any 
person. An agreement entered into under this section shall not relieve any 
person from the obligation to comply with applicable human health and 
environmental protection statutes and rules, but may include an enforce- 
able schedule for actions necessary for the person to come into or maintain 
compliance as expeditiously as practicable with such statutes and rules, if 
the person demonstrates to the satisfaction of the department that such a 
schedule is appropriate, given the factors listed in subsection (4) of this 
section. The provisions of this section shall not apply where prohibited by 
federal or state law. 

(2) The department may propose, and the board adopt, rules necessary 
for the implementation of this section. 

(3) In establishing any compliance agreement schedule, the term of the 
agreement shall not exceed ten (10) years, although successive agreements 
may be entered into. Agreements shall provide for annual meetings between 
the department and the person to reassess whether, considering the factors 
listed in subsection (4) of this section, the schedule and other terms of the 
agreement are still appropriate. All agreements must be signed by the 
director or his designee and an authorized representative on behalf of the 
person. All agreements are enforceable as orders under the provisions of this 
chapter. 

(4) Agreements and schedules entered into under this act shall take into 
account, in descending priority the: 



39-116B HEALTH AND SAFETY 146 

(a) Protection of public health; 

(b) Protection of environment; 

(c) Ability of the person to pay for costs of compliance; 

(d) Current fiscal obligations of the person; 

(e) Other factors as determined by the department or the board. 

History. 

I.C., § 39-116A, as added by 2003, ch. 317, 
§ 1, p. 869. 

STATUTORY NOTES 

Compiler's Notes. Effective Dates. 

The term "this act" in subsection (4) refers Section 2 of S.L. 2003, ch. 317 declared an 

to S.L. 2003, ch. 317, which is codified as this emergency. Approved April 24, 2003. 
section. 

39-116B. Vehicle inspection and maintenance program. — (1) The 

board shall initiate rulemaking to provide for the implementation of a motor 
vehicle inspection and maintenance program to regulate and ensure control 
of the air pollutants and emissions from registered motor vehicles in an 
attainment or unclassified area as designated by the United States envi- 
ronmental protection agency, not otherwise exempted in subsection (7) of 
this section, if the director determines the following conditions are met: 

(a) An airshed, as defined by the department, within a metropolitan 
statistical area, as defined by the United States office of management and 
budget, has ambient concentration design values equal to or above 
eighty-five percent (85%) of a national ambient air quality standard, as 
defined by the United States environmental protection agency, for three 
(3) consecutive years starting with the 2005 design value; and 

(b) The department determines air pollutants from motor vehicles con- 
stitute one (1) of the top two (2) emission sources contributing to the 
design value of eighty-five percent (85%). 

(2) In the event both of the conditions in subsection (1) of this section are 
met, the board shall establish by rule minimum standards for an inspection 
and maintenance program for registered motor vehicles, not otherwise 
exempted in subsection (7) of this section, which shall provide for: 

(a) Counties and cities within the airshed that will be subject to the motor 
vehicle inspection and maintenance program; 

(b) The requirements for licensing authorized inspection stations and 
technicians; 

(c) The frequency with which inspections shall be required, provided that 
inspections shall occur no more than once every two (2) years; 

(d) The procedures under which authorized inspection stations and 
technicians inspect motor vehicles and issue evidence of compliance; 

(e) The criteria under which it is to be determined that a motor vehicle is 
eligible for a certificate of compliance; 

(f) The parameters and diagnostic equipment necessary to perform the 
required inspection. The rules shall ensure that the equipment complies 
with any applicable standards of the United States environmental pro- 
tection agency; 



147 ENVIRONMENTAL QUALITY — HEALTH 39-116B 

(g) A fee, bond or insurance which is necessary to carry out the provisions 

of this section and to fund an air quality public awareness and outreach 

program. The fee for a motor vehicle inspection shall not exceed twenty 

dollars ($20.00) per vehicle; 

(h) The issuance of a pamphlet for distribution to owners of motor 

vehicles explaining the reasons for and the methods of the inspections; 

and 

(i) The granting of a waiver from the minimum standards as provided by 

rule, which may be based on model year, fuel, size, or other factors. 

(3) In the event both of the conditions in subsection (1) of this section are 
met, the director shall attempt to enter into a joint exercise of powers 
agreement under sections 67-2326 through 67-2333, Idaho Code, with the 
board of county commissioners of each county within the airshed in which a 
motor vehicle inspection and maintenance program is required under this 
section, and the councils of incorporated cities within those counties, to 
develop a standardized inspection and maintenance program. If the board of 
county commissioners or the councils of incorporated cities within those 
counties choose not to enter into a joint exercise of powers agreement with 
the director, then within one hundred twenty (120) days of the director's 
written request to enter into such an agreement, the board of county 
commissioners or the councils of incorporated cities may notify the depart- 
ment that it will implement an alternative motor vehicle emission control 
strategy that will result in emissions reductions equivalent to that of a 
vehicle emission inspection program. If the department determines the 
emissions reductions of the alternative motor vehicle emission control 
strategy are not equivalent, or no equivalent reductions are proposed, the 
department or its designee shall implement the motor vehicle inspection 
and maintenance program required pursuant to the provisions of this 
section. 

(4) The Idaho transportation department shall revoke the registration of 
any motor vehicle identified by the department or its designee, or any city or 
county administering a program established under the provisions of this 
section as having failed to comply with such motor vehicle inspection and 
maintenance program, except that no vehicle shall be identified to the Idaho 
transportation department unless: 

(a) The department or its designee, or the city or county certifies to the 
Idaho transportation department that the owner of the motor vehicle has 
been given notice and had the opportunity for a hearing concerning the 
program and has exhausted all remedies and appeals from any determi- 
nation made at such hearing; and 

(b) The department or its designee, or the city or county reimburses the 
Idaho transportation department for all direct costs associated with the 
registration revocation procedure. 

Any vehicle registration that has been revoked pursuant to the provisions of 
this section that is found to be in compliance with current emissions 
standards shall have the registration reinstated without charge. 

(5) The department shall annually review the results of the vehicle 
inspection and maintenance program. The review shall include, among 
other things, an estimate of the emission reduction obtained from the 



39-117 HEALTH AND SAFETY 148 

number of vehicles that initially fail the test and then pass after mainte- 
nance. 

(6) Every five (5) years beginning with the implementation of the pro- 
gram, the director shall review the air quality data and determine whether 
a program initially established pursuant to the provisions of this section 
should be continued, modified or terminated. 

(7) Electric or hybrid motor vehicles, new motor vehicles less than five (5) 
years old, classic automobiles, motorized farm equipment and registered 
motor vehicles engaged solely in the business of agriculture, shall be exempt 
from any motor vehicle inspection and maintenance program established 
pursuant to the provisions of this section. 

History. 

I.C., § 39-116B, as added by 2008, ch. 368, 
§ 1, p. 1007; am. 2011, ch. 329, § 1, p. 964. 

STATUTORY NOTES 

Cross References. Effective Dates. 

Transportation department, § 40-501 et Section 2 of S.L. 2011, ch. 329 declared an 

sec l- emergency. Approved April 14, 2011. 

Amendments. 

The 2011 amendment, by ch. 329, added the 
last sentence in subsection (4). 

39-117. Criminal violation — Penalty. — (1) Any person who wil- 
fully or negligently violates any of the provisions of the non-air quality 
public health or environmental protection laws or the terms of any lawful 
notice, order, permit, standard, rule or regulation issued pursuant thereto, 
shall be guilty of a misdemeanor and upon conviction thereof shall be 
punished by a fine of not more than ten thousand dollars ($10,000) for each 
separate violation or one thousand dollars ($1,000) per day for continuing 
violations, whichever is greater. 

(2) Any person who knowingly violates any of the provisions of the air 
quality public health or environmental protection laws or the terms of any 
lawful notice, order, permit, standard or rule issued pursuant thereto shall 
be guilty of a misdemeanor and upon conviction thereof, shall be punished 
by a fine of not more than ten thousand dollars ($10,000) per day per 
violation. In addition, any person who knowingly releases into the ambient 
air any hazardous air pollutant listed pursuant to section 112 of the federal 
clean air act 42 USC 7412, or any extremely hazardous substance listed 
pursuant to 42 USC 11002(a)(2) that is not listed under section 112, and who 
knows at the time that he thereby places another person in imminent 
danger of death or serious bodily injury shall, upon conviction, be punished 
by a fine of not more than two hundred fifty thousand dollars ($250,000) per 
day, or by imprisonment of not more than fifteen (15) years or both such fine 
and imprisonment. Any person committing such violation which is an 
organization, shall, upon conviction under this subsection, be subject to a 
fine of not more than one million dollars ($1,000,000) for each violation. For 
any air pollutant for which the environmental protection agency or the 
board of health and welfare [board of environmental quality] has set an 



149 ENVIRONMENTAL QUALITY — HEALTH 39-118 

emissions standard or for any source for which a permit has been issued 
under title V of the clean air act amendments of 1990, a release of such 
pollutant in accordance with that standard or permit shall not constitute a 
violation of the provisions of this subsection. 

History. 1993, ch. 275, § 7, p. 926; am. 1998, ch. 125, 

I.C., § 39-117, as added by 1973, ch. 137, § 3, p. 461. 
§ 1, p. 268; am. 1986, ch. 60, § 8, p. 169; am. 

STATUTORY NOTES 

Prior Laws. was added by the compiler to reflect the 

Former § 39-117 was repealed. See Prior transfer of certain powers and duties from the 

Laws, § 39-101. board of health and welfare to the board of 

Federal References. environmental quality. See § 39-107. 

Title V of the federal clean air act, referred „„ . ~ 

to in subsection (2), is compiled as 42 USCS . r c ' 1f .„ Q , 10 „ , , , 

§ 7661 t Section 2 of S.L. 1973, ch. 137 declared an 

^' emergency. Approved March 15, 1973. 

Compiler's Notes. Section 5 of S.L. 1998, ch. 125 declared an 

The bracketed insertion in subsection (2) emergency. Approved March 19, 1998. 

39-118. Review of plans. — (1) Except as provided by subsection (2) of 
this section, all plans and specifications for the construction of new sewage 
systems, sewage treatment plants or systems, other waste treatment or 
disposal facilities, public water supply systems or public water treatment 
systems or for material modification or expansion to existing sewage 
treatment plants or systems, waste treatment or disposal facilities, public 
water supply systems or public water treatment systems, shall be submitted 
to and approved by the director before construction may begin, and all 
construction shall be in substantial compliance therewith. Material modifi- 
cations are those that are intended to increase system capacity or to alter 
the methods or processes employed. The director shall review plans and 
specifications and endeavor to resolve design issues within forty-two (42) 
days of submittal such that approval can be granted. If the director and 
applicant have not resolved design issues within forty- two (42) days or at 
any time thereafter, the applicant may file a written demand to the director 
for a decision. Upon receipt of such written demand, the director shall 
deliver a written decision to the applicant within no more than seven (7) 
days explaining any reasons for disapproval. The director shall maintain 
records of all written demands for decision made pursuant to this subsection 
with such records including the final decision rendered and the timeliness 
thereof. No material deviation shall be made from the approved plans and 
specifications without the prior approval of the director. 

(2) Plans meeting the following standards shall not require 
preconstruction approval by the director: 

(a) Plans for dairy systems pursuant to section 37-401, Idaho Code. 

(b) Plans developed to evidence compliance with storm water best man- 
agement practices. 

(c) Plans developed for routine maintenance or equipment replacement 
activities. 

(d) Plans for sanitary sewer extensions, water main extensions, and 
storm drain extensions, when such facilities will be owned and operated 



39-118 HEALTH AND SAFETY 150 

by a city, county, quasi-municipal corporation or regulated public utility 
where such city, county, quasi-municipal corporation or regulated public 
utility provides for the review of such plans and specifications by a 
qualified licensed professional engineer to verify compliance with facility 
standards and approves construction plans prior to initiation of construc- 
tion. Any plans approved pursuant to this subsection shall be transmitted 
to the director at the time construction is authorized along with a 
statement that the plans comply with the facility standards and that 
construction has been authorized by the public agency or public utility. At 
the discretion of any city, county, quasi-municipal corporation or regulated 
public utility, the plans addressed by this subsection may be referred to 
the director for review and approval prior to initiation of construction. 

(3) Within thirty (30) days of the completion of construction of facilities 
for which plans are required to be reviewed pursuant to subsection (1) or 
subsection (2)(d) of this section, record plans and specifications based on 
information provided by the construction contractor and field observations 
made by the engineer or the engineer's designee depicting the actual 
construction of facilities performed must be submitted to the director by the 
engineer representing the public agency or regulated public utility, if the 
resultant facilities will be owned and operated by a public agency or 
regulated public utility, or by the design engineer or owner-designated 
substitute engineer if the constructed facilities will not be owned and 
operated by a public agency or regulated public utility. Such submittal by 
the professional engineer must confirm material compliance with the 
approved plans or disclose any material deviations therefrom. If construc- 
tion does not materially deviate from the original plans and specifications 
previously provided to the department, the owner may have a statement to 
that effect prepared by a licensed professional engineer and filed with the 
department in lieu of submitting a complete and accurate set of record 
drawings. 

(4) All plans and specifications submitted to satisfy the requirements of 
subsection (1) of this section and all plans approved pursuant to subsection 
(2)(d) of this section shall be in compliance with applicable facility and 
design standards and conform in style and quality to regularly accepted 
engineering standards. The department shall review plans to determine 
compliance with applicable facility standards and engineering standards of 
care. As long as the plans and specifications comply with applicable facility 
and design standards, the department shall not substitute its judgment for 
that of the owner's design engineer concerning the manner of compliance 
with design standards. Except with respect to plans and specifications for 
facilities addressed in subsection (5) of this section, and confined animal 
feeding operations, the board may require that certain types of plans and 
specifications must be stamped by registered professional engineers. If the 
director determines that any particular facility or category of facilities will 
produce no significant impact on the environment or on the public health, 
the director shall be authorized to waive the submittal or approval require- 
ment for that facility or category of facilities. 

(5) All plans and specifications for the construction, modification, expan- 
sion, or alteration of waste treatment or disposal facilities for aquaculture 



151 ENVIRONMENTAL QUALITY — HEALTH 39-118 

facilities licensed by the department of agriculture for both commercial fish 
propagation facilities as defined in section 22-4601, Idaho Code, and sport 
fish propagation facilities whether private or operated or licensed by the 
department of fish and game and other aquaculture facilities as defined in 
the Idaho waste management guidelines for aquaculture operations, shall 
be submitted to and approved by the director of the department of environ- 
mental quality before construction may begin and all construction shall be 
in compliance therewith. The director shall review plans and specifications 
within forty-five (45) days of submittal and notify the owner or responsible 
party of approval or disapproval. In the event of disapproval the director 
shall provide reasons for disapproval in writing to the owner or responsible 
party. Plans and specifications shall conform in style and quality to standard 
industry practices and guidelines developed pursuant to this subsection. 
The director shall establish industry guidelines or best management prac- 
tices subcommittees composed of members of the department, specific 
regulatory agencies for the industry, general public, and persons involved in 
the industry to develop and update guidelines or best management practices 
as needed. Within thirty (30) days of the completion of the construction, 
modification, expansion or alteration of facilities subject to this subsection, 
the owner or responsible party shall submit a statement to the director that 
the construction has been completed and is in substantial compliance with 
the plans and specifications as submitted and approved. The director shall 
conduct an inspection within sixty (60) days of the date of submission of the 
statement and shall inform the owner or responsible party of its approval of 
the construction or in the event of nonapproval, the reasons for nonapproval. 

History. § 9. p. 169: am. 1994. ch. 290. § 1. p. 910; am. 

I.C., § 39-118, as added by 1973, ch. 136, 1996. ch. 80. § 1, p. 262; am. 2000, ch. 132, 

§ 1, p. 267; am. 1974, ch. 23, § 58, p. 633; am. § 2 5. p. 309; am. 2005. ch. 321, § 1. p. 988. 
1976, ch. 116, § 1, p. 453; am. 1986, ch. 60, 

STATUTORY NOTES 

Prior Laws. Section 2 of S.L. 1996, ch. 80 declared an 

Former § 39-118 was repealed. See Prior emergency. Approved March 6, 1996. 

Laws, § 39-101. Section 39 of S.L. 2000, ch. 132 provides: 

Compiler's Notes. "(1) This act shall be in full force and effect on 

Section 2 of S.L. 2005, ch. 321 provided and after July 1, 2000. except that the Divi- 

The Director of the Department of Environ- sion of Environmen tal Qualitv shall have one 

mental Quality shall appomt a committee of M , . , « . ^ f K , 

licensed professional engineers who are regu- { { ] >' ear thereafter to accomplish necessary 

larly engaged in the design of facilities regu- changes to complete the physical transition to 

lated by Section 39-118(1), Idaho Code, to the new department. 

assist the Department of Environmental "(2) Notwithstanding any other provisions 
Quality in establishing facility standards and of Chapter 52, Title 67, Idaho Code, the Ad- 
design standards for such faculties . Such ministrative Rules Coordinator shall redesig- 
^A^fi 1 ! sha11 be ad °P ted no later than June nate aU references to the Division of Environ- 



30, 2006. 



mental Quality which appear in the master 



Effective Dates. rule database maintained by the coordinator. 

Section 2 of S.L. 1973, ch. 136 declared an to the Department of Environmental Quality 

emergency. Approved March 15, 1973. without further republication or promulga- 

Section 182 of S.L. 1974, ch. 23 provided the tion, to comply with the provisions of this act. 

act should be in full force and effect on and Until such time as a republication of a rule 

after July 1, 1974. occurs, any reference in a rule to the Division 

Section 2 of S.L. 1976, ch. 116 declared an of Environmental Quality shall mean the De- 
emergency. Approved March 16, 1976. partment of Environmental Quality." 



39-118A HEALTH AND SAFETY 152 

JUDICIAL DECISIONS 

Denial of Permit. homeowners' permits to construct a nitration 

Where homeowners failed to show that they system on their property on the grounds that 

would suffer any additional burden by con- a superior sewer collection system was rea- 

necting onto privately owned sewer line than sonably available. Lindstrom v. District Bd. of 

the burden they would bear if required to Health, 109 Idaho 956, 712 R2d 657 (Ct. App. 

connect to a publicly owned sewer line, the 1985). 
district board of health could deny the 

39-118A. Ore processing by cyanidation. — (1) All plans and spec- 
ifications for the construction of a cyanidation facility shall be submitted to 
and approved by the department before construction may begin, and all 
construction shall be in compliance therewith. Within thirty (30) days of the 
completion of such construction, modification or expansion, complete and 
accurate plans and specifications depicting that actual construction, modi- 
fication or expansion does not deviate from the original approved plans and 
specifications, shall be submitted to the department. All plans and specifi- 
cations submitted to satisfy the requirements of this section shall be 
certified by registered professional engineers. 
(2)(a) A cyanidation facility shall not be constructed, operated, or closed 
prior to a permit being obtained from the department. 

(b) Weather permitting, the director shall deliver to the operator within 
one hundred eighty (180) days after the receipt of a complete permit 
application the notice of rejection or notice of approval of the permit, as 
the case may be, provided however, that, subject to the provisions of 
subsection (3) of this section, if the director fails to deliver a notice of 
approval or notice of rejection within the time period, the permit submit- 
ted shall be deemed to comply with this chapter, and the operator may 
commence to build, operate or close the cyanidation facility covered by the 
permit, as the case may be, as if a notice of approval of the permit had 
been received from the director. Provided however, that if weather 
conditions prevent the director from inspecting the cyanidation facility to 
obtain information needed to approve or reject a submitted permit, he 
may, in writing to the operator, extend the time not to exceed thirty (30) 
days after weather conditions permit such inspection. 

(c) The director may require a reasonable fee for processing permit 
applications. 

(3)(a) Prior to the effective date of rules promulgated under chapter 15, 
title 47, Idaho Code, the department is authorized to issue a permit under 
subsection (2) of this section if the cyanidation facility has provided 
financial assurance under the provisions of IDAPA 58.01.13 in an amount 
determined by the department to be the estimated reasonable costs to 
complete the activities specified in the permanent closure plan required in 
IDAPA 58.01.13, in the event of the failure of an operator to complete 
those activities, plus ten percent (10%) of such costs. In setting the 
amount of financial assurance, the department shall avoid duplication 
with any financial assurance, bonds and sureties deposited with other 
governmental agencies. 

(b) After the effective date of rules promulgated under chapter 15, title 
47, Idaho Code, the department shall not issue a permit under subsection 



153 ENVIRONMENTAL QUALITY — HEALTH 39-118C 

(2) of this section unless the cyanidation facility has satisfied the financial 
assurance requirements of chapter 15, title 47, Idaho Code, relating to ore 
processing by cyanidation. 

(4) A cyanidation facility with an existing permit approved by the 
department prior to July 1, 2005, shall be subject to the applicable laws and 
rules for ore processing by cyanidation in effect on June 30, 2005. If there is 
a material modification or a material expansion of a cyanidation facility 
after June 30, 2005, all provisions of this chapter shall apply to the 
modification or expansion; provided however, that reclamation or closure 
related activities at a facility with an existing cyanidation permit approved 
by the department that did not actively add cyanide after January 1, 2005, 
shall not be considered to be material modifications or a material expansion 
of the facility. 

(5) The department shall promulgate temporary rules by August 1, 2005, 
to implement the provisions of this act; however, no rulemaking is necessary, 
nor shall be required, to increase the amount of financial assurance provided 
by the department's interim authority under subsection (3)(a) of this section. 

History. 

I.C., § 39-118A, as added by 1987, ch. 356, 
§ 1, p. 789; am. 2005, ch. 167, § 2, p. 509. 

STATUTORY NOTES 

Compiler's Notes. Effective Dates. 

The term "this act" in subsection (5) refers Section 2 of S.L. 1987, ch. 356 declared an 

to S.L. 2005, ch. 167, which is codified as emergency. Approved April 6, 1987. 
§§ 39-103, 39-118A, 42-202B, 47-1501 to 47- 
1503, 47-1505 to 47-1508, 47-1512 to 47-1514, 
47-1517, and 47-1518. 

39-118B. Relationship to federal law. — The board may promulgate 
rules and regulations to ensure that the state of Idaho is in compliance with 
the provisions of the federal clean air act. To the extent that the federal 
clean air act sets forth or the United States environmental protection 
agency adopts or has adopted a specific standard, emission limitation or 
control technology requirement under the clean air act, a more stringent 
standard, emission limitation or control technology requirement promul- 
gated by the board shall not become effective until specifically approved by 
statute. 

History. 

I.C., § 39-118B, as added by 1993, ch. 275, 
§ 1, p. 926. 

STATUTORY NOTES 

Federal References. section, is compiled as 42 USCS § 7401 et 

The federal clean air act, referred to in this seq. 

39-118C. Legislative findings and declaration of purpose. — 

(1) The legislature finds that it is an obligation of the state of Idaho under 



39-118C HEALTH AND SAFETY 154 

title V of the clean air act to provide for an operating permit program for 
sources of air pollution within the state. 

(2) The purpose of these amendments to the environmental protection 
and health act is to meet the state's obligation to protect air quality with a 
cost-effective operating permit program. 

(3) The legislature intends that the department's regulation under title V 
of the clean air act shall take advantage of the flexibility authorized by the 
federal clean air act to establish reasonable and cost-effective requirements. 
Such requirements shall include, but not be limited to: 

(a) Operating flexibility provisions; 

(b) Provisions allowing off-permit changes; 

(c) Provisions that limit federally enforceable hazardous air pollutant 
requirements to that group of pollutants listed under section 112 of the 
federal clean air act (to the extent that the operating permits address 
hazardous air pollutants); 

(d) Provisions for operating permits to be issued for fixed terms of five (5) 
years; provided that, in order to facilitate the implementation of the title 
V operating permit program, the director may issue operating permits 
with terms of from three (3) to five (5) years during the first three (3) years 
following environmental protection agency approval of Idaho's title V 
operating permit program so long as those permits with fixed terms of less 
than five (5) years are renewed with terms of five (5) years thereafter; and 
provided further that if the maximum operating permit term under the 
federal clean air act should be extended beyond five (5) years, the director 
shall similarly extend the term of operating permits issued under the 
Idaho program; and provided further, that shorter terms are allowable 
when mutually agreed upon by the department and the applicant; 

(e) Provisions for adequate, streamlined and reasonable procedures for 
processing modifications, including establishing criteria to determine 
insignificant changes that shall not require a permit modification, and 
establishing classes of modifications based on significance which shall 
include a minor modification class for which modifications may be 
processed in group as authorized by 40 CFR 70.7(e)(3) as may be 
amended; and 

(f) Provisions allowing an existing source to make changes that reduce 
emissions without applying for a permit to construct or an amendment to 
an operating permit; provided, however, that an existing source that 
makes such changes may seek and obtain an operating permit modifica- 
tion if it chooses. 

History. 

I.C., § 39-118C, as added by 1993, ch. 275, 
§ 2, p. 926. 

STATUTORY NOTES 

Prior Laws. Federal References. 

Former § 39-118C, which comprised I.C., Title V of the federal clean air act, referred 

§ 39-118C, as added by 1991, ch. 229, § 1, p. to in this section, is compiled as 42 USCS 

548, was repealed by S.L. 1992, ch. 189, § 4. § 7661 et seq. 



155 ENVIRONMENTAL QUALITY — HEALTH 39-118E 

Section 112 of the federal clean air act, Compiler's Notes. 
referred to in this section, is compiled as 42 The words enclosed in parentheses so ap- 

USCS § 7412 et seq. peared in the law as enacted. 

39-118D. Idaho air quality permitting fund. — (1) All moneys 
received from fees collected from the pollution sources requiring permitting 
under title V of the federal clean air act amendments of 1990 shall be 
forwarded to the department of environmental quality and shall be paid into 
the Idaho air quality permitting fund which is hereby created in the office of 
the state treasurer. 

(2) Such moneys and all interest earned thereon shall be kept in the 
Idaho air quality permitting fund and shall be expended for the technical, 
legal and administrative support necessary for implementing the operating 
permit program required under title V of the federal clean air act amend- 
ments of 1990. 

(3) All salaries, costs and expenses incurred by the department of 
environmental quality in performing the duties and the exercise of its 
powers in carrying out the operating permit program required under title V 
of the federal clean air act amendments of 1990 shall be paid out of the air 
quality permitting fund. 

History. 

I.C., § 39-118D, as added by 1993, ch. 275, 
§ 3, p. 926; am. 2000, ch. 132, § 26, p. 309. 

STATUTORY NOTES 

Cross References. "(2) Notwithstanding any other provisions 

State treasurer, § 67-1201 et seq. f Chapter 52, Title 67, Idaho Code, the Ad- 



Federal References. 



ministrative Rules Coordinator shall redesig- 



Title V of the federal clean air act, referred nate a11 references to the Division of Environ- 
to in this section, is compiled as 42 USCS mental Quality which appear in the master 
§ 7661 et seq. rule database maintained by the coordinator, 
Fff H n to the Department of Environmental Quality 

Sectio V n e 39 a ofS.L. 2000, ch. 132 provides: ™ th ° Ut fai ^ er ^ licati ™ or Promulga- 
"(1) This act shall be in full force and effect on J 1 ™!* """J* Wlth the Prions of this act. 
and after July 1, 2000, except that the Divi- Untl1 such time as a repub hcation of a rule 
sion of Environmental Quality shall have one °fj? rs '. ^ reference in a rule to the Division 
(1) year thereafter to accomplish necessary of Environmental Quality shall mean the De- 
changes to complete the physical transition to V**™^ of Environmental Quality, 
the new department. 

39-118E. Small business assistance. — The department shall imple- 
ment a small business assistance program as required in 42 U.S. C. 7661 A 
[7661a]. 

History. 

I.C., § 39-118E, as added by 1993, ch. 275, 
§ 8, p. 926. 

STATUTORY NOTES 

Federal References. small business assistance program referenced 

The bracketed insertion was added by the to in this section is probably the small busi- 

compiler to correct the federal citation. The ness stationary source technical and environ- 



39-119 HEALTH AND SAFETY 156 

mental compliance assistance program man- 
dated by 42 USCS § 7661f. 

39-119. Collection of fees for services. — The department of envi- 
ronmental quality is hereby authorized to charge and collect reasonable 
fees, established by standards formulated by the director and approved by 
the board through rulemaking, for any service rendered by the department. 

History. 

I.C., § 39-119, as added by 1975, ch. 182, 
§ 1, p. 499; am. 2000, ch. 132, § 27, p. 309. 

STATUTORY NOTES 

Prior Laws. "(2) Notwithstanding any other provisions 
Former § 39-119 was repealed. See Prior f Chapter 52, Title 67, Idaho Code, the Ad- 
Laws, § 39-101. ministrative Rules Coordinator shall redesig- 
Effective Dates. nate au references to the Division of Environ- 
Section 2 of S.L. 1975, ch. 182 declared an mental Quality which appear in the master 
emergency. Approved March 27, 1975. rule database maintained by the coordinator, 
Section 39 of S.L. 2000, ch. 132 provides: to the Department of Environmental Quality 
"(1) This act shall be in full force and effect on without further republication or promulga- 
and after July 1, 2000, except that the Divi- tion, to comply with the provisions of this act. 
sion of Environmental Quality shall have one Until such time as a republication of a rule 
(1) year thereafter to accomplish necessary occurs, any reference in a rule to the Division 
changes to complete the physical transition to of Environmental Quality shall mean the De- 
the new department. partment of Environmental Quality." 

39-120. Department of environmental quality primary adminis- 
trative agency — Agency responsibilities. — (1) The department of 
environmental quality is designated as the primary agency to coordinate 
and administer ground water quality protection programs for the state. 

(2) Recognizing that the department of water resources has the respon- 
sibility to maintain the natural resource geographic information system for 
the state and is the collector of baseline data for the state's water resources, 
that the department of environmental quality has the responsibility for 
collecting and monitoring data for water quality management purposes and 
that the department of agriculture is responsible for regulating the use of 
pesticides and fertilizers and for licensing applicators, the department of 
environmental quality, the department of water resources and the depart- 
ment of agriculture shall: 

(a) Develop a ground water monitoring plan, concurrently with the 
development of a ground water quality plan, for development and admin- 
istration of a comprehensive ground water quality monitoring network, 
including point of use, point of contamination and problem assessment 
monitoring sites across the state and the assessment of ambient ground 
water quality utilizing, to the greatest degree possible, collection and 
coordination of existing data sources. 

(b) Establish a system or systems within state departments and political 
subdivisions of the state for collecting, evaluating and disseminating 
ground water quality data and information. 

(c) Develop and maintain a natural resource geographic information 
system and comprehensive water resource data system. The system shall 
be accessible to the public. 



157 ENVIRONMENTAL QUALITY — HEALTH 39-121 

(3) The responsible state departments or boards should adopt rules which 
specify the general standards for determining actions necessary to prevent 
ground water contamination and cleanup actions necessary to meet the 
goals of the state. 

(4) The director of the department of environmental quality may develop 
and recommend for approval by the board through rulemaking, ambient 
ground water quality standards for contaminants for which the administra- 
tor of the United States environmental protection agency has established 
drinking water maximum contaminant levels. The director may develop and 
recommend for approval by the board, through rulemaking, ground water 
quality standards for contaminants for which the administrator of the 
United States environmental protection agency has not established drink- 
ing water maximum contaminant levels. However, the existence of such 
standards, or the lack of them, should not be construed or utilized in 
derogation of the ground water quality protection goal and protection 
policies of the state. 

(5) The departments of environmental quality, water resources and 
agriculture should take actions necessary to promote and assure public 
confidence and public awareness of ground water quality protection. In 
pursuing this goal, the departments and public health districts should make 
public the results of investigations concerning ground water quality subject 
to the restrictions contained in section 39-111, Idaho Code. 

History. § 2, p. 1027; am. 1990, ch. 151, § 1, p. 334; 

I.C., § 39-120, as added by 1989, ch. 421, am. 2000, ch. 132, § 28, p. 309. 

STATUTORY NOTES 

Cross References. changes to complete the physical transition to 

Department of agriculture, § 22-101 et seq. the new department. 

Department of water resources, § 42-1701 "(2) Notwithstanding any other provisions 

et se q of Chapter 52, Title 67, Idaho Code, the Ad- 
ministrative Rules Coordinator shall redesig- 

Prior Laws. nate an references to the Division of Environ- 

Former § 39-120 was repealed. See Prior mental Quality which appear in the master 

Laws § 39-101 ru ^ e database maintained by the coordinator, 

to the Department of Environmental Quality 

Effective Dates. without further republication or promulga- 

Section 39 of S.L. 2000, ch. 132 provides: tion, to comply with the provisions of this act. 

"(1) This act shall be in full force and effect on Until such time as a republication of a rule 

and after July 1, 2000, except that the Divi- occurs, any reference in a rule to the Division 

sion of Environmental Quality shall have one of Environmental Quality shall mean the De- 

(1) year thereafter to accomplish necessary partment of Environmental Quality." 

39-121. Definitions. — As used in section 39-102, Idaho Code, and in 
sections 39-120 through 39-127, Idaho Code: 

(1) "Cleanup" means removal, treatment or isolation of a contaminant 
from ground water through the directed efforts of humans or the removal or 
treatment of a contaminant in ground water through management practice 
or the construction of barriers, trenches and other similar facilities for 
prevention of contamination, as well as the use of natural processes such as 
ground water recharge, natural decay and chemical or biological decompo- 
sition. 

(2) "Contaminant" means any chemical, ion, radionuclide, synthetic or- 



39-122 HEALTH AND SAFETY 158 

ganic compound, microorganism, waste or other substance which does not 
occur naturally in ground water or which naturally occurs at a lower 
concentration. 

(3) "Contamination" means the direct or indirect introduction into ground 
water of any contaminant caused in whole or in part by human activities. 

(4) "Ground water" means any water of the state which occurs beneath 
the surface of the earth in a saturated geological formation of rock or soil. 

(5) "Ground water quality plan" or "ground water quality protection plan" 
means the Idaho ground water quality plan adopted by the legislature in 
section 1, chapter 310, laws of 1992, and in section 1, chapter 273, laws of 
1995. 

History. 

I.C., § 39-121, as added by 1989, ch. 421, 
§ 2, p. 1027; am. 2000, ch. 132, § 29, p. 309. 

STATUTORY NOTES 

Prior Laws. ministrative Rules Coordinator shall redesig- 

Former § 39-121 was repealed. See Prior nate all references to the Division of Environ- 

Laws, § 39-101. mental Quality which appear in the master 

Effective Dates. ru ^ e database maintained by the coordinator, 

Section 39 of S.L. 2000, ch. 132 provides: to the Department of Environmental Quality 

"(1) This act shall be in full force and effect on without further republication or promulga- 

and after July 1, 2000, except that the Divi- tion, to comply with the provisions of this act. 

sion of Environmental Quality shall have one Until such time as a republication of a rule 

(1) year thereafter to accomplish necessary occurs, any reference in a rule to the Division 

changes to complete the physical transition to of Environmental Quality shall mean the De- 

tofxr d *P^ men t-. ,_ partment of Environmental Quality." 

(2) Notwithstanding any other provisions 

of Chapter 52, Title 67, Idaho Code, the Ad- 

39-122, 39-123. Ground water quality council created; completion 
of ground water quality plan. [Repealed.] 

STATUTORY NOTES 

Prior Laws. 39-122, which comprised I.C., § 39-122, as 

Other former §§ 39-122 and 39-123 were added by 1989, ch. 421, § 2, p. 1027. 

repealed. See Prior Laws, § 39-101. 39-123, which comprised I.C., § 39-123, as 

Co ^ ipil , e , r ' s Notes - added by 1989, ch. 421, § 2, p. 1027; am. 

S.rio f ^T g 13Tt n 3 S ^c^it t 1990 ' *' 151 ' » 2 > "• 334 ' 
2000: 

39-124. Legislative findings — Intent. [Null and void.] 

STATUTORY NOTES 

Prior Laws. Compiler's Notes. 

Former § 39-124, which comprised I.C., This section, which comprised S.L. 2006, 

§ 39-124, as added by 1989, ch. 421, § 2, p. ch. 367, § 1, became null and void on April 7, 

1027, was repealed by S.L. 2000, ch. 132, 2008, two years after it became effective. 
§ 30, effective July 1, 2000. 



159 ENVIRONMENTAL QUALITY — HEALTH 39-126 

39-125. Moratorium on construction of certain coal fired power 
plants — Report. [Null and void.] 

STATUTORY NOTES 

Prior Laws. Compiler's Notes. 

Former § 39-125, which comprised I.C., This section, which comprised S.L. 2006, 

§ 39-125, as added by 1989, ch. 421, § 2, p. ch. 367, § 2, became null and void on April 7, 

1027, was repealed by S.L. 2000, ch. 132, 2008, two years after it became effective. 
§ 30, effective July 1, 2000. 

39-126. Duties of state and local units of government. — (1) All 

state agencies shall incorporate the adopted ground water quality protection 
plan in the administration of their programs and shall have such additional 
authority to promulgate rules to protect ground water quality as necessary 
to administer such programs which shall be in conformity with the ground 
water quality protection plan. Cities, counties and other political subdivi- 
sions of the state shall incorporate the ground water quality protection plan 
in their programs and are also authorized and encouraged to implement 
ground water quality protection policies within their respective jurisdic- 
tions, provided that the implementation is consistent with and not pre- 
empted by the laws of the state, the ground water quality protection plan 
and any rules promulgated thereunder. All state agencies, cities, counties 
and other political subdivisions shall cooperate with the department of 
environmental quality, the department of agriculture and the department of 
water resources in disseminating public information and education materi- 
als concerning the use and protection of ground water quality, in collecting 
ground water quality management data, and in conducting research on 
technologies to prevent or remedy contamination of ground water. 

(2) Notwithstanding any other provision of law to the contrary, except as 
provided in subsection (3) of this section, whenever a state agency, city, 
county or other political subdivision of the state issues a permit or license 
which deals with the environment, the entity issuing the permit or license 
shall take into account the effect the permitted or licensed activity will have 
on the ground water quality of the state and it may attach conditions to the 
permit or license in order to mitigate potential or actual adverse effects from 
the permitted or licensed activity on the ground water quality of the state. 
Nothing contained in this section shall authorize a state agency, city, county 
or other political subdivision of the state to issue or require a permit or 
license which it is not otherwise allowed by law to issue or require. 

(3) Except as otherwise provided by the ground water quality protection 
plan, if a permit or license which deals with the environment is required to 
be obtained from a state agency and that agency considers the effect of the 
permitted or licensed activity on ground water quality, after notice to other 
units of government which may otherwise have regulatory authority over 
the activity which is the subject of the permit or license, a city, county or 
other political subdivision of the state shall not prohibit, limit or otherwise 
condition the rights of the permittee or licensee under the permit or license 
on account of the effect the permitted or licensed activity may have on 
ground water quality. 



39-127 HEALTH AND SAFETY 160 

Nothing contained in this section shall be deemed to permit cities, 
counties or other political subdivisions of the state to regulate ground water 
quality with respect to any activity for which another statute or other 
statutes may have expressly or impliedly preempted such local ground 
water quality regulation. 

History. 

I.C., § 39-126, as added by 1989, cti. 421, 
§ 2, p. 1027; am. 2000, ch. 132, § 31, p. 309. 

STATUTORY NOTES 

Cross References. changes to complete the physical transition to 

Department of agriculture, § 22-101 et seq. the new department. 

Department of water resources, § 42-1701 "(2) Notwithstanding any other provisions 

et seq. of Chapter 52, Title 67, Idaho Code, the Ad- 

. ministrative Rules Coordinator shall redesig- 

Prior Laws. na t e all references to the Division of Environ- 

Former § 39-126 was repealed. See Prior mental Quality which appear in the master 

Laws, § 39-101. rule database maintained by the coordinator, 

to the Department of Environmental Quality 

Effective Dates. without further republication or promulga- 

Section 39 of S.L. 2000, ch. 132 provides: tion, to comply with the provisions of this act. 

"(1) This act shall be in full force and effect on Until such time as a republication of a rule 

and after July 1, 2000, except that the Divi- occurs, any reference in a rule to the Division 

sion of Environmental Quality shall have one of Environmental Quality shall mean the De- 

(1) year thereafter to accomplish necessary partment of Environmental Quality." 

39-127. Application of fertilizers and pesticides. — No person shall 
be liable for ground water contamination resulting from the application of 
fertilizers or pesticides if the person applies a fertilizer according to 
generally accepted agronomic practices, or applies a pesticide product 
registered under the federal insecticide, fungicide, rodenticide act according 
to label requirements, including precautionary statements, of the U.S. 
environmental protection agency, and such application of the pesticide or 
fertilizer is otherwise done with the proper equipment required by law, is 
without negligence and is in accordance with state laws. 

History. 

I.C., § 39-127, as added by 1989, ch. 421, 
§ 2, p. 1027. 

STATUTORY NOTES 

Prior Laws. Compiler's Notes. 

Former § 39-127 was repealed. See Prior Section 4 of S.L. 1989, ch. 421 read: "Short 

Laws, § 39-101. title. This act may be known and cited as the 

Federal References. 'Ground Water Quality Protection Act of 

The federal insecticide, fungicide, 1989.'" 
rodenticide act is codified as 7 USCS § 136 et 
seq. 

39-128. Applicability — Promulgation of rules — Establishment 
of zones — Combustor charging composition and recordkeeping — 
Report to local government — Permit processing. — 1. Except as 
provided in subsection 2 of this section, the provisions of this section shall 
apply to medical waste combustors with a maximum rated capacity equal to 



161 ENVIRONMENTAL QUALITY — HEALTH 39-128 

or greater than three (3) tons per day. All combustors located on one (1) or 
more contiguous or adjacent properties and owned or operated by the same 
person or persons under common control shall be considered in determining 
the maximum rated capacity of a combustor. 

2. The department is hereby directed to develop and propose, and the 
board is hereby directed to adopt, rules and regulations controlling emis- 
sions of air contaminants from all medical waste combustors, and imple- 
menting the provisions of this section except the provisions of subsections 8 
and 9. 

3. The following zones are hereby established: 

a. Zone 1, consisting of the counties of Benewah, Bonner, Boundary, 
Clearwater, Idaho, Kootenai, Latah, Lewis, Nez Perce and Shoshone. 

b. Zone 2, consisting of the counties of Ada, Adams, Boise, Canyon, 
Elmore, Gem, Owyhee, Payette, Valley and Washington. 

c. Zone 3, consisting of the counties of Bannock, Bear Lake, Bingham, 
Blaine, Bonneville, Butte, Camas, Caribou, Cassia, Clark, Custer, 
Franklin, Fremont, Gooding, Jefferson, Jerome, Lemhi, Lincoln, Madison, 
Minidoka, Oneida, Power, Teton and Twin Falls. 

4. Any county may petition the director to become incorporated into an 
adjacent zone. The director shall grant the petition provided it does not 
conflict with the purposes of this act, or any rule, regulation, permit or order 
issued or promulgated pursuant to this act. 

5. For any combustor constructed or modified after the date of enactment 
of this section, no less than seventy per cent (70%) of the weight of the 
material charged into the combustor on an annual basis shall be material 
generated inside the zone in which the combustor is located. 

6. An owner or operator of a combustor constructed and operated prior to 
the date of enactment of this section shall, by October 1, 1992, notify the 
department in writing describing the type, location and maximum rated 
capacity of the combustor. 

7. Any person who owns or operates a combustor shall keep records as to 
the source, weight and type of material charged, and whether the material 
was generated within or outside the zone in which the combustor is located. 
These records shall be maintained for a period of not less than five (5) years 
and shall be made available to the department upon request. The require- 
ments of this subsection may be fully or partially waived by the director if 
the owner or operator certifies to the department that no material generated 
outside the zone shall be charged into the combustor. 

8. Any person proposing to construct or modify a combustor shall provide, 
in writing, to the local government a comprehensive report which shall 
include: 

a. An overall description of the project; 

b. The amount, type and disposal method of all solid waste produced; 

c. The amount and content of any liquid to be discharged into the sewer 
system, applied to the land, or discharged into an impoundment or pond; 

d. The amount, type and control of air emissions; 

e. The effect of the facility on vehicular traffic; 

f. The amount of noise produced by the facility; 

g. The extent and control of odors from the facility; and 



39-128 HEALTH AND SAFETY 162 

h. Any additional information requested, in writing, by the local govern- 
ment pertaining to the effect of the proposed facility upon the community 
or local resources. 

9. The local government shall conduct at least one (1) public hearing 
regarding any proposal to construct or modify a combustor within the 
jurisdiction of the local government at which interested persons shall have 
an opportunity to be heard. At least fifteen (15) days prior to the hearing, 
notice of the time and place of the hearing, a brief summary of the proposal, 
and the location of the comprehensive report required by the provisions of 
subsection 8 of this section, shall be published in a newspaper of general 
circulation within the jurisdiction of the local government. The local 
government shall, after hearing, notify in writing the person proposing to 
construct or modify the combustor that the proposal conforms or does not 
conform to applicable planning and zoning ordinances. Reasonable condi- 
tions may be placed on any approval so as to ensure that construction or 
modification of the combustor is in conformance with local planning and 
zoning ordinances and that all necessary local, state and federal permits are 
obtained. 

10. Any person applying to the department for a permit to construct or 
modify a combustor shall submit, as part of the application, the notification 
required in subsection 8 of this section indicating that the proposal 
conforms, or conforms with conditions, to local government planning and 
zoning ordinances. Any application received by the department which does 
not include such a notification of approval or conditional approval shall be 
incomplete. 

11. The director shall have authority to sue in competent courts to enjoin 
any threatened or continuing violation of the provisions of this section, or 
any rule, regulation, permit or order issued or promulgated to implement 
the provisions of this section. The court shall grant injunctive relief upon a 
showing that a violation of the provisions of this section or any rule, 
regulation, permit or order implementing the provisions of this section has 
occurred and is reasonably likely to continue. 

12. The director shall have the authority to declare that an emergency 
exists and that a combustor may receive a waiver to combust material 
generated outside the zone in which the combustor is located in excess of the 
amount specified in subsection 5 of this section, provided the director finds 
that such an action is necessary to protect human health and the environ- 
ment. The waiver shall not extend beyond six (6) months for any single 
combustor and eighteen (18) months in total duration. 

13. For purposes of this section only: 

a. The term "combustor" means a medical waste combustor as defined in 
section 39-103, Idaho Code. 

b. The term "local government" means the city government for the city in 
which the combustor is to be located or, if the combustor is to be located 
outside the limits of an incorporated city, the county government for the 
county in which the combustor is to be located. 



163 



ENVIRONMENTAL QUALITY — HEALTH 



39-129 



History. 

I.C., § 39-128, as added by 1992, ch. 189, 
§ 2, p. 588. 



STATUTORY NOTES 



Prior Laws. 

Former § 39-128 was repealed. See Prior 
Laws, § 39-101. 

Legislative Intent. 

Section 1 of S.L. 1992, ch. 189 read: "(1) The 
legislature of the State of Idaho finds: 
"(a) Maintaining the air quality of the state of 
Idaho to protect human health and the envi- 
ronment is a paramount concern and respon- 
sibility of the legislature. 
"(b) Due to the diminishing capacity of land- 
fills nationwide and the increased costs of 
waste disposal, the amount of medical waste 
proposed for disposal by combustion in Idaho 
has and will increase significantly. 
"(c) The burning of medical waste, while an 
acceptable and effective form of disposal if 
controlled by reasonable measures, can create 
air emissions adversely affecting human 
health and the environment. 
"(d) Existing state rules and regulations do 
not adequately control the emission of air 
contaminants from medical waste combus- 
tors. 

"(e) The state's comprehensive efforts to pre- 
serve its valuable air quality resources are 
being threatened by the potential of an unre- 
stricted increase in medical waste. 
"(f) Uncontrolled increases in medical waste 
combustion can cause increased odors, noise, 
truck traffic and other significant adverse 
effects on local communities. 
"(g) The state's air quality resources will be 
threatened by the increased combustion of 
medical waste unless existing air resources 
are conserved to meet the needs of the state 
and a fair share of the need of other states. 
"(h) The amount of medical waste currently 
brought into or sent out of large regions of the 
state for purposes of combustion is negligible, 
and reasonable requirements controlling the 
combustion of these materials generated out- 



side of large regions of the state will not 
adversely affect industry or commerce inside 
or outside large regions of the state, 
"(i) The effective local management of sewage, 
drinking water, traffic, health protection, and 
other local government concerns is dependent 
on the thorough knowledge of all the projected 
impacts of a proposed medical waste combus- 
tor proposed within the jurisdiction of a local 
government. 

"(2) Therefore, it is hereby declared that the 
purposes of this act are: 
"(a) To direct the department to develop and 
propose, and the board to adopt, rules and 
regulations controlling the emission of air 
contaminants from medical waste combus- 
tors. 

"(b) To establish a mechanism to control the 
amount of medical waste combusted within 
each major region of the state to those gener- 
ated within the region plus a reasonable por- 
tion of these materials generated outside the 
region. 

"(c) To ensure that Idaho adequately con- 
serves its air quality resources in a manner 
which protects human health and the envi- 
ronment. 

"(d) To ensure that local communities and 
governments are provided with comprehen- 
sive information and the ability to ensure 
compliance with local requirements for any 
proposed medical waste combustor prior to 
the processing of a state air quality permit." 

Compiler's Notes. 

The term "this act" in subsection 4 refers to 
S.L. 1992, ch. 189, which is codified as this 
section and appears in a note following this 
section. 

The phrase "the date of enactment of this 
section" in subsections 5 and 6 refers to the 
date of this enactment of S.L. 1992, ch. 189, 
which was July 1, 1992. 



39-129. Applicability — Definition of local government and man- 
dates — Authorization for local government agreements — Adop- 
tion of rules — Establishment of schedules — Priority of consider- 
ations — Report and recommendations. — (1) The provisions of this 
section shall apply to local governments providing drinking water, munici- 
pal waste disposal, municipal sewage or waste water disposal or treatment, 
or air pollution abatement, which can demonstrate to the satisfaction of the 
department that increasing and cumulative regulatory requirements appli- 
cable to such services cannot be met in a timely and reasonable manner. The 
provisions of the section do not apply where prohibited by federal or state 
laws or regulations for the protection of human health and the environment. 

(2) For purposes of this section the term "local government" means the 



39-130 HEALTH AND SAFETY 164 

government of a county or incorporated city, and the term "federal man- 
dates" means those requirements arising from federal statutes or subse- 
quent regulations administered by the United States environmental protec- 
tion agency. 

(3) The department is hereby authorized to enter into agreements with 
local governments. The agreement may include a binding schedule enforce- 
able under this chapter for the improvement, modification, construction, or 
other actions, necessary in order for the local government to come into 
compliance as expeditiously as practicable with human health and environ- 
mental protection statutes and rules stemming from federal mandates. 

(4) The department may propose, and the board adopt, rules necessary 
for the implementation of this section. 

(5) In establishing any local government agreement schedule, the term of 
the agreement shall not exceed fifteen (15) years, although successive 
agreements may be entered into. All agreements must be signed by the 
director or his designee and the mayor of the city or county commissioners 
of the county, as appropriate. All agreements are enforceable as orders 
under the provisions of this chapter. 

(6) Agreements and schedules entered into under this act shall take into 
account, in descending priority the: 

(a) Protection of public health; 

(b) Protection of the environment; 

(c) Current tax structure and rates as compared to other local govern- 
ments; 

(d) Ability of the local government to pay for costs of compliance; 

(e) Current fiscal obligations of the local government; 

(f) Other factors as determined by the department or the board. 

History. 

I.C., § 39-129, as added by 1994, ch. 162, 
§ 2, p. 369; am. 2000, ch. 132, § 32, p. 309. 

STATUTORY NOTES 

Compiler's Notes. of Chapter 52, Title 67, Idaho Code, the Ad- 

The term "this act" in subsection (6) refers ministrative Rules Coordinator shall redesig- 

section 1 " 4, Ch ' 162 ' WhlCh ^ C ° dified ^ ^^ nate a11 references t0 the Division of Environ- 

mental Quality which appear in the master 

Effective Dates. ru l e database maintained by the coordinator, 

Section 39 of S.L. 2000, ch. 132 provides: , .* n n „ n ^. m „ ni . „fi7„„;„ n „ m ^i n i n««i;+„ 

"(1) This act shall be in full force and effect on to * e Department of Environmental Quality 

and after July 1, 2000, except that the Divi- without further republication or promulga- 

sion of Environmental Quality shall have one tion, to comply with the provisions of this act. 

(1) year thereafter to accomplish necessary Until such time as a republication of a rule 

changes to complete the physical transition to occurs, any reference in a rule to the Division 

the new department. of Environmental Quality shall mean the De- 

"(2) Notwithstanding any other provisions partment of Environmental Quality" 

39-130. Removal — Remediation — Bunker Hill mining and 
metallurgical complex superfund facility. — Notwithstanding any 
other provision of law to the contrary, removal and remediation actions in or 
related to any operable unit of the Bunker Hill mining and metallurgical 
complex superfund facility performed by or on behalf of the department of 



165 ENVIRONMENTAL QUALITY — HEALTH 39-171 

environmental quality shall not constitute public works pursuant to chapter 
57, title 67, Idaho Code, chapter 19, title 54, Idaho Code, or any other 
provision of Idaho Code. In the letting and oversight of contracts for such 
removal or remediation actions, bonding of contractors may be required. The 
administrator of the division of waste [management] and remediation, 
department of environmental quality, and the director of the department of 
environmental quality, shall have the authority of the administrator of the 
division of purchasing, department of administration, and the director of the 
department of administration, respectively, in requiring open competitive 
bidding pursuant to sections 67-5715 through 67-5718A, 67-5725, 67-5726, 
67-5729, 67-5730 and 67-5733, Idaho Code, and any relevant rules of the 
department of administration. 

History. 

I.C., § 39-130, as added by 2007, ch. 123, 
§ 1, p. 373. 

STATUTORY NOTES 

Prior Laws. compiler to supply the correct name of the 

Former § 39-130 was repealed. See Prior referenced state agency. 

Laws, § 39-101. 

Compiler's Notes. 
The bracketed insertion was added by the 

39-131 — 39-136. Emergency medical services — Intent — Defini- 
tions — Authorized actions — Rules and regulations — 
Liability — Failure to obtain consent. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 6, p. 310, were repealed by § 1 of S.L. 1996, 

These sections, which comprised I.C., ch. 26, effective July 1, 1996. For present law, 

§§ 39-131 to 39-136 as added by S.L. 1972, ch. see § 56-1011 et seq 
92, §§ 1 to 6, p. 200; am. 1980, ch. 145, §§ lto 

39-137 _ 39-138. [Reserved.] 

39-139 — 39-170. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. and redesignated as §§ 56-1011 to 56-1040, 

Former §§ 39-139 to 39-170 were amended pursuant to S.L. 2001, ch. 110, §§ 4 to 35. 

39-171. Legislative findings and purpose. — The legislature of the 
state of Idaho finds that: 

(1) Wood and mill yard debris is a byproduct of wood processing and 
manufacturing; and 

(2) If properly managed, wood and mill yard debris can be put to uses that 
have economic and environmental benefits; and 

(3) There is a need for guidance about how to manage, store, use or 



39-172 HEALTH AND SAFETY 166 

dispose of wood and mill yard debris so that nuisance and adverse environ- 
mental impacts are minimized; and 

(4) This guidance will enable the department and local units of govern- 
ment to more effectively regulate the use or disposal of wood and mill yard 
debris. 

The purpose of sections 39-171 through 39-174, Idaho Code, is to provide 
guidance for the sound use, storage, management and disposal of wood and 
mill yard debris by requiring the director of the department of environmen- 
tal quality to appoint a committee to study the issues and to gather and 
disseminate information to persons and entities that deal with wood and 
mill yard debris. 

History. ch. 204, § 1, p. 627; am. and redesig. 2001, ch. 

I.C., § [39-171] 39-166, as added by 1996, 103, § 15, p. 253. 

STATUTORY NOTES 

Compiler's Notes. was approved first, it was compiled as § 

S.L. 1996, ch. 147, § 1 and S.L. 1996, ch. 39-166 (and subsequently renumbered). Sec- 

204, § 1, both effective July 1, 1996, purported tion 39-166, as enacted by S.L. 1996, ch. 204, 

to enact a new section of chapter 16, title 39, § 1, was redesignated, in brackets, as § 39- 

Idaho Code, designated as § 39-166. Since § 171. That redesignation was made permanent 

39-166, as enacted by S.L. 1996, ch. 147, § 1 by S.L. 2001, ch. 103. 

39-172. Definitions. — For purposes of sections 39-171 through 39-174, 
Idaho Code: 

(1) "Committee" means the wood and mill yard debris committee. 

(2) "Director" means the director of the Idaho department of environmen- 
tal quality. 

(3) "Wood or mill yard debris" means solid wood, bark, or wood fiber 
generated from the process of manufacturing wood products that may 
include components of soil, rock, or moisture, and for which the use, 
management, storage or final disposition is approved pursuant to sections 
39-171 through 39-174, Idaho Code. 

History. ch. 204, § 2, p. 627; am. and redesig. 2001, ch. 

I.C., § [39-172] 39-167, as added by 1996, 103, § 16, p. 253. 

STATUTORY NOTES 

Compiler's Notes. was approved first, it was compiled as § 

S.L. 1996, ch. 147, § 1 and S.L. 1996, ch. 39-167 (and subsequently renumbered). Sec- 

204, § 2, both effective July 1, 1996, purported tion 39-167, as enacted by S.L. 1996, ch. 204, 

to enact a new section of chapter 16, title 39, § 1, was redesignated, in brackets, as § 39- 

Idaho Code, designated as § 39-167. Since § 172. That redesignation was made permanent 

39-167, as enacted by S.L. 1996, ch. 147,'§ 1 by S.L. 2001, ch. 103. 

39-173. Committee — Members — Terms. — The director shall 
appoint a committee to develop guidance on the use, storage, management 
and disposal of mill yard or wood debris. This committee shall consist of 
seven (7) individuals and shall include: 

(1) One (1) representative of the department of environmental quality, 
who will provide administrative and other support to the committee. 



167 ENVIRONMENTAL QUALITY — HEALTH 39-174 

(2) Two (2) representatives of the public health districts which have mill 
yard or wood debris within their districts. 

(3) Two (2) representatives from industries generating wood or mill yard 
debris. 

(4) Two (2) members with demonstrated technical knowledge important 
to the work of the committee. 

Committee members shall be appointed to serve three (3) year terms. No 
member may serve more than two (2) full terms. Members serve at the 
pleasure of the director. 

Members of the committee shall serve without compensation pursuant to 
section 59-509(a), Idaho Code. 

History. ch. 204, § 3, p. 627; am. and redesig. 2001, ch. 

I.C., § [39-173] 39-168, as added by 1996, 103, § 17, p. 253. 

STATUTORY NOTES 

Compiler's Notes. was approved first, it was compiled as § 

S.L. 1996, ch. 147, § 1 and S.L. 1996, ch. 39-168 (and subsequently renumbered). Sec- 

204, § 3, both effective July 1, 1996, purported tion 39-168, as enacted by S.L. 1996, ch. 204, 

to enact a new section of chapter 16, title 39, § 1, was redesignated, in brackets, as § 39- 

Idaho Code, designated as § 39-168. Since § 173. That redesignation was made permanent 

39-168, as enacted by S.L. 1996, ch. 147, § 1 by S.L. 2001, ch. 103. 

39-174. Committee duties — Meetings. — The committee's duties 
shall include: 

(1) Developing a manual providing guidance for the use, storage, man- 
agement and disposal of wood or mill yard debris to prevent public 
nuisances and minimize or prevent harmful environmental impacts. Guid- 
ance provided by the manual may be incorporated or adopted by reference in 
the rules of the department or other appropriate state agencies. 

(2) Considering and developing specific solutions to unforeseen wood or 
mill yard debris use, storage, management or disposal as needed. 

(3) Developing and sharing knowledge related to the use, storage, man- 
agement and disposal of wood or mill yard debris including ways to 
constructively use or reclaim the debris. 

(4) Making recommendations for any necessary permits, rules or legisla- 
tion related to the use, storage, management or disposal of wood or mill yard 
debris. 

The committee shall meet at least two (2) times a year at a time and place 
most convenient to the majority of members. 

History. ch. 204, § 4, p. 627; am. and redesig. 2001, ch. 

I.C., § [39-174] 39-169, as added by 1996, 103, § 18, p. 253. 

STATUTORY NOTES 

Compiler's Notes. was approved first, it was compiled as § 

S.L. 1996, ch. 147, § 1 and S.L. 1996, ch. 39-169 (and subsequently renumbered). Sec- 

204, § 4, both effective July 1, 1996, purported tion 39-169, as enacted by S.L. 1996, ch. 204, 

to enact a new section of chapter 16, title 39, § 1, was redesignated, in brackets, as § 39- 

Idaho Code, designated as § 39-169. Since § 174. That redesignation was made permanent 

39-169, as enacted by S.L. 1996, ch. 147, § 1 by S.L. 2001, ch. 103. 



39-175 HEALTH AND SAFETY 168 

39-175. [Reserved.] 

39-175A. Legislative findings and purposes. — (1) The legislature 
finds: 

(a) That navigable waters within the state are one of the state's most 
valuable natural resources; 

(b) That it is in the public interest to promote effective and efficient 
regulation of the discharge of pollutants into navigable waters, and to 
explore whether the state should control such permitting decisions as 
authorized under the federal clean water act; 

(c) That the clean water act allows a state to develop and implement, with 
approval from the United States environmental protection agency, a 
national pollutant discharge elimination system (NPDES) program to be 
administered by the state; 

(d) That the clean water act, as amended, and regulations adopted 
pursuant thereto, establish complex and detailed provisions for regulation 
of those who discharge pollutants into navigable waters; 

(e) That a state program to implement permitting decisions as authorized 
in the clean water act, and regulations adopted pursuant thereto may 
enable the state to issue flexible permits consistent with the clean water 
act and avoid the existence of duplicative, overlapping or conflicting state 
and federal regulatory systems; 

(f) That a state program must be run with a minimum of federal 
interference in permitting, inspection and enforcement activities and that 
all state permitting actions under the approved state program are to be 
state actions and are not subject to consultation under the endangered 
species act or analysis under the provisions of the national environmental 
policy act. There should be no conditions of approval of the state program 
which have the effect of undermining or circumventing this principle; 

(g) That the decision to accept delegation of authority from the environ- 
mental protection agency to operate an NPDES program has significant 
public policy implications that should be made ( by the legislature. 

(2) Therefore, it is the intent of the legislature to establish requirements 
that must be satisfied prior to legislative approval of a permitting program 
that complies with the clean water act and which incorporates flexible 
permitting procedures and rules to be promulgated by the board. 

History. 

I.C., § 39-175A, as added by 2005, ch. 57, 
§ 1, p. 211. 

STATUTORY NOTES 

Federal References. The federal clean water act is codified as 33 

The endangered species act, referred to in U.S.C.S. § 1251 et seq. 

subdivision (l)(f), is codified as 16 USCS 

§ 1531 et seq. Compiler's Notes. 

The national environmental policy act, re- The letters "NPDES" enclosed in parenthe- 

ferred to in subdivision (l)(f), is codified as 42 ses so appeared in the law as enacted. 

USCS § 4321 et seq. 



169 ENVIRONMENTAL QUALITY — HEALTH 39-175C 

39-175B. Relationship between state and federal law. — The 

legislature cannot conveniently or advantageously set forth in this chapter 
all the requirements of all of the regulations which have been or will be 
established under the clean water act. However, any state permitting 
program must avoid the existence of duplicative, overlapping or conflicting 
state and federal regulatory systems. Further, the board may promulgate 
rules to implement a state permitting program but such rules shall not 
impose conditions or requirements more stringent or broader in scope than 
the clean water act and regulations adopted pursuant thereto. Further, the 
department will not require NPDES permits for activities and sources not 
required to have permits by the United States environmental protection 
agency. 

History. 

I.C., § 39-175B, as added by 2005, ch. 57, 
§ 1, p. 211. 

STATUTORY NOTES 

Federal References. 

The federal clean water act is codified as 33 
U.S.C.S. § 1251 et seq. 

39-175C. Approval of state NPDES program. — (1) The department 
is authorized to explore whether the state should operate an NPDES 
program by evaluating the costs and benefits to the state, of such a program, 
consistent with the requirements of this section. The department shall 
prepare a report to the legislature as to its findings by December 31, 2005. 

(2) The board is authorized to proceed with negotiated rulemaking and 
all other actions that may eventually be necessary to obtain approval of a 
state NPDES program by the United States environmental protection 
agency. 

(3) The director shall not execute a memorandum of agreement with the 
United States environmental protection agency to obtain NPDES program 
approval as specified under section 402 of the clean water act and 40 CFR 
123 until completion of any required consultation and issuance of any final 
biological opinion or biological assessment under the endangered species 
act. 

(4) Any memorandum of agreement executed by the director to obtain 
approval to operate a state NPDES program shall not be binding on the 
state of Idaho unless authorized by enactment of a statute. Any memoran- 
dum of agreement not authorized in the above manner shall be of no force 
and effect. 

(5) Implementation of a state NPDES program shall not occur prior to 
statutory enactment of implementing legislation and authorization of a 
memorandum of agreement as specified in subsection (4) of this section. 

(6) No provision of this chapter shall be interpreted as to supersede, 
abrogate, injure or create rights to divert or store water and apply water to 
beneficial uses established under section 3, article XV, of the constitution of 
the state of Idaho, and title 42, Idaho Code. 

(7) Nothing in this section is intended to supersede any existing agree- 



39-175C 



HEALTH AND SAFETY 



170 



ments between federal, state or local agencies regarding authority over 
inspections, enforcement or other obligations under the clean water act. 

History. 

I.C., § 39-175C, as added by 2005, ch. 57, 
§ 1, P- 211. 

STATUTORY NOTES 

Federal References. subsection (3), is codified as 16 USCS § 1531 

Section 402 of the clean water act, referred et seq. 
to in subsection (3), is codified as 33 U.S.C.S. The clean water act is codified as 33 

§ !342. U.S.C.S. § 1251 et seq. 

The endangered species act, referred to in 

CHAPTER 2 
VITAL STATISTICS 



SECTION. 

39-201 — 39-210. [Repealed.] 
39-211. [Amended and redesignated.] 
39-212 — 39-217. [Repealed.] 
39-218. [Amended and redesignated.] 
39-219 — 39-234. [Repealed.] 
39-235 — 39-239. [Reserved.] 

VITAL STATISTICS ACT 

39-240. Short title. 

39-241. Definitions. 

39-242. Duties of director. 

39-243. State registrar of vital statistics. 

39-244. Duties of state registrar. 

39-245. Certificate forms. 

39-246. Local registration districts. 

39-247. Local registration officers. 

39-248. Other employees. 

39-249. Transmittal of certificates and local 
records. 

39-250. Completion and correction of certifi- 
cates — Procedure — Other 
alterations prohibited. 

39-251. Compensation of local registrars. 

39-252. Fee for copies, searches and other 
services — Death certificates. 

39-253. Accounting for fees. 

39-254. Payment of fees to local registration 
officers. 

39-255. Registration of births. 

39-256. Registration of foundlings. 

39-257. Marriage of natural parents of per- 
son born in Idaho — Judicial 
determination of parentage of 
person born in Idaho — New 
birth certificates — Procedure. 

39-258. Adoption of persons born in Idaho — 
New birth certificate issued to 
replace original certificate — 
Procedure — Adoption pro- 
ceedings not open to inspec- 



39-259. 



tion with certain exceptions — 
Duties of the clerks of courts 
issuing adoption decrees — 
Duties of state registrar of vi- 
tal statistics. 

Adoption of persons born in foreign 
countries. 
39-259A. Voluntary adoption registry for pro- 
viding limited access to birth 
information of adult adoptees. 
39-260. Registration of deaths and still- 
births. 
39-260A. Transportation of dead human bod- 
ies. [Repealed.] 

Induced abortion reporting forms — 
Compilations. 

Registration of marriage — Marriage 
certificates filed. 

Marriage license fees. 

Registration of persons authorized to 
perform marriage ceremony. 
[Repealed.] 

Registration of divorces — Annul- 
ments of marriage. 

Fee for court clerk. 

Delayed registration. 

Authorization for final disposition. 

Disinterment — Rules. 

Disclosure of information. 

Records of institutions. 

Duties to provide information. 

Penalties. 
39-274. Evidentiary character of records and 

copies of records. 
39-275. Applicability. 
39-276. Uniformity of interpretation. 
39-277. Autopsies for suspected Creutzfeldt- 

Jakob disease. 
39-278. Procedure for delayed registration or 
amendment of vital record. 



39-261. 

39-262. 

39-263. 
39-264. 



39-265. 

39-266. 
39-267. 
39-268. 
39-269. 
39-270. 
39-271. 
39-272. 
39-273. 



171 VITAL STATISTICS 39-218 

39-201 — 39-210. Jurisdiction of department of public welfare — 
Local registration districts — Local registrars — Dead 
bodies — Stillborn children — Death certificates — 
Burial permits — Disinterment. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 1633; am. 1921, ch. 122, § 1; I.C.A., §§ 38- 

These sections, which comprised S.L. 1911, 201 to 38-209; am. 1935, ch. 61, § 1; am. 1945, 

ch. 191, §§ 1, 3 to 10; 1913, ch. 39, § 1; C.L., ch. 85, §§ 1, 2; am. 1947, ch. 94, §§ 1, 2, were 

§§ 1086a, 1086c to 1086j; C.S., §§ 1625 to repealed by S.L. 1949, ch. 72, § 34. 

39-211. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. 

Section 31 of S.L. 1983, ch. 7 amended and 
redesignated this section as § 39-269. 

39-212. Duties of sexton. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. § 38-211, was repealed by S.L. 1949, ch. 72, 

This section, which comprised S.L. 1911, ch. § 34. 
191, § 11;C.L,§ 1086k; C.S., § 1634; I.C.A., 

39-213. Transportation of bodies of persons dying of certain dis- 
eases — Diseases. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 101; I.C.A., § 38-212, was repealed by S.L. 

This section, which comprised C.S., 1951, ch. 137, § 1. 
§ 1634-a, as added by 1923, ch. 89, § 2, p. 

39-214 — 39-217. Registration of births — Duties of physicians and 
midwives — Certificates of birth — Given names. 
[Repealed.] 

STATUTORY NOTES 

Compiler's Notes. C.S., §§ 1635 to 1638; I.C.A., §§ 38-213 to 

These sections, which comprised S.L. 1911, 38-216; am. 1945, ch. 103, § 1, were repealed 
ch. 191, §§ 12 to 15; C.L., §§ 10861 to 1086o; by S.L. 1949, ch. 72, § 34. 

39-218. [Amended and redesignated.] 

STATUTORY NOTES 

Prior Laws. 1937, ch. 139, § 1, p. 224; am. 1945, ch. 47, 

Former § 39-218, which comprised S.L. § 1, p. 60; am. 1949, ch. 280, § 1, p. 573, was 



39-219 HEALTH AND SAFETY 172 

repealed by S.L. 1959, ch. 104, § 1. 
Compiler's Notes. 

Section 18 of S.L. 1983, ch. 7 amended and 
redesignated this section as § 39-258. 

39-219 — 39-221. Affidavit of legitimation — Correction of certifi- 
cates of birth, death and marriage. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 139, §§ 2 to 4, p. 224, were repealed by S.L. 

These sections, which comprised 1937, ch. 1953, ch. 213, § 1, p. 324. 

39-222 — 39-234. Registration of physicians, midwives, and under- 
takers — Statistical records and forms — Compensa- 
tion of local registrars — Fees — Penalties — County 
recorder — Fees — Failure to perform duties — Pun- 
ishment. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. §§ 1087, 1090, 1092, 1093; C.L., §§ 1086p to 

These sections, which comprised S.L. 1907, 1086x, 1087, 1090, 1092, 1093; C.S., §§ 1639 

ch. 182, §§ 8, 13, 15, 16; am. 1911, ch. 191, to 1648, 1651, 1653, 1654; I.C.A., §§ 38-217 to 

§§ 16 to 24, 27; am. 1913, ch. 39, § 2; am. 38-226, 38-229, 38-231, 38-232, were repealed 

1929, ch. 84, § 1; am. 1947, ch. 94, § 3; R.C., by S.L. 1949, ch. 72, § 34. 

39-235 — 39-239. [Reserved.] 

VITAL STATISTICS ACT 

39-240. Short title. — This act may be cited as the "Idaho Vital 
Statistics Act." 

History. 

1949, ch. 72, § 32, p. 117; redesig. and am. 
1983, ch. 7, § 1, p. 23. 

STATUTORY NOTES 

Compiler's Notes. "Section 34. Repeals. — Sections 38-201, 

This section was formerly compiled as § 39- 38-202, 38-203, 38-204, 38-204(a), 38-205, 38- 

2? The words "this act" refer to S.L. 1949, ch. 206 ' 38 " 207 > 38 " 208 ' ^'J^***** 

72, which is compiled as §§ 39-240 to 39-249, 38-214, 38-215, 38-216, 38-217, 38-218, 38- 

39-251 to 39-256, 39-260, 39-262, 39-263, 39- 219, 38-220, 38-221, 38-222, 38-223, 38-224, 

265 to 39-268, 39-270, 39-271, 39-273, 39-274, 38 -225, 38-226, 38-227, 38-228, 38-229, 38- 

and 39-276 230 38 . 2 31, 38-232, Idaho Code Annotated, 

provfde L%onows Cha P ter 61 > Idaho Session Laws of 1935 ' 

"Section 33. Severability. -If any provision Chapter 85, Idaho Session Laws of 1945, 

of this act, or the application thereof to any Chapter 103, Idaho Session Laws of 1945, 

person or circumstances, shall be adjudged to Chapter 94, Idaho Session Laws of 1947, are 

be invalid, such judgment shall not affect any all hereby repealed." 
other provision or application of this act 

which can be given effect without the invalid Effective Dates. 

provision or application, and to this end the Section 35, S.L. 1949, ch. 72, provided this 

provisions of this act are declared to be sev- act shall be effective from and after January 

erable. 1, 1950. 



173 VITAL STATISTICS 39-241 

JUDICIAL DECISIONS 

Jurisdiction. risdictions; therefore, the magistrate court 

Because the Idaho Vital Statistics Act does had no jurisdiction to order the amendment of 

not expressly provide for extraterritorial ap- petitioner's Missouri birth certificate. Phillips 

plication, the act cannot be construed to have v. Consolidated Supply Co., 126 Idaho 973, 

any binding authoritative effect on other ju- 895 P.2d 574 (1995). 

39-241. Definitions. — For the purposes of this chapter and this 
chapter only, the following terms shall be construed to have the meanings 
hereinafter set forth: 

(1) "Adoptive parent" means an adult who has become a parent of a child 
through the legal process of adoption. 

(2) "Advanced practice professional nurse" means a professional nurse 
licensed in this state who has gained additional specialized knowledge, 
skills and experience through a nationally accredited program of study and 
is authorized to perform advanced nursing practice as denned in section 
54-1402, Idaho Code, and includes certified nurse midwives and nurse 
practitioners as defined in the same section. 

(3) "Board" means the Idaho state board of health and welfare. 

(4) "Certified copy" means the reproduction of an original vital record by 
typewritten, photographic or electronic means. Such reproductions, when 
certified by the state registrar, shall be used as the original. 

(5) "Consent" means a verified written statement which has been nota- 
rized. 

(6) "Dead body" means a lifeless human body or such parts of the human 
body or the bones thereof from the state of which it reasonably may be 
concluded that death occurred. 

(7) "Director" means the director of the department of health and welfare. 

(8) "Fetal death" means death prior to the complete expulsion or extrac- 
tion from its mother of a product of human conception, irrespective of the 
duration of pregnancy; the death is indicated by the fact that after such 
expulsion or extraction, the fetus does not breathe or show any other 
evidence of life such as beating of the heart, pulsation of the umbilical cord, 
or definite movement of voluntary muscles. 

(a) "Induced termination of pregnancy (induced abortion)" means the 
purposeful interruption of pregnancy with an intention other than to 
produce a live-born infant or to remove a dead fetus and which does not 
result in a live birth. 

(b) "Spontaneous fetal death" means the expulsion or extraction of a 
product of human conception resulting in other than a live birth and 
which is not an induced termination of pregnancy. 

(9) "Identifying information" includes the following information: 

(a) The name of the qualified adoptee before placement in adoption; 

(b) The name and address of each qualified birthparent as it appears in 
birth records; 

(c) The current name, address and telephone number of the qualified 
adult adoptee; and 

(d) The current name, address and telephone number of each qualified 
birthparent. 



39-241 HEALTH AND SAFETY 174 

(10) "Live birth" means the complete expulsion or extraction from its 
mother of a product of human conception, irrespective of the duration of 
pregnancy, which, after such expulsion or extraction, breathes, or shows any 
other evidence of life such as beating of the heart, pulsation of the umbilical 
cord, or definite movement of voluntary muscles, whether or not the 
umbilical cord has been cut or the placenta is attached. Heartbeats are to be 
distinguished from transient cardiac contractions; respirations are to be 
distinguished from fleeting respiratory efforts or gasps. 

(11) "Person in charge of interment" means any person who places or 
causes to be placed a stillborn fetus or dead body or the ashes of the same, 
after cremation, in a grave, vault, urn, or other receptacle, or otherwise 
disposes thereof. 

(12) "Physician" means a person legally authorized to practice medicine 
and surgery, osteopathic medicine and surgery or osteopathic medicine in 
this state as defined in section 54-1803, Idaho Code. 

(13) "Physician assistant" means any person who is a graduate of an 
acceptable training program and who is otherwise qualified to render 
patient services as defined in section 54-1803, Idaho Code. 

(14) "Qualified adult adoptee" means an adopted person eighteen (18) 
years of age or older who was born in Idaho. 

(15) "Qualified adult birth sibling" means a genetic, biological, or natural 
brother or sister or half-brother or half-sister, eighteen (18) years of age or 
older. 

(16) "Qualified birthparent" means a genetic, biological, or natural parent 
whose rights were voluntarily or involuntarily terminated by a court or 
otherwise. "Birthparent" includes a man who is the parent of a child prior to 
the termination of parental rights. 

(17) "Record" means the original certificate of an event and any replace- 
ment thereof filed for record by virtue of authority contained in this chapter, 
as well as instruments of any nature provided by this chapter as a means of 
effecting replacement of certificates. 

(18) "Registrar" means the state registrar of vital statistics or a desig- 
nated representative. 

(19) "Relative" includes only an individual's spouse, birthparent, adoptive 
parent, sibling, or child who is eighteen (18) years of age or older. 

(20) "Stillbirth" means a spontaneous fetal death of twenty (20) com- 
pleted weeks gestation or more, based on a clinical estimate of gestation, or 
a weight of three hundred fifty (350) grams (twelve and thirty-five hun- 
dredths (12.35) ounces) or more. 

(21) "Vital statistics" includes the registration, preparation, transcrip- 
tion, collection, compilation and preservation of data pertaining to births, 
adoptions, legitimations, deaths, stillbirths, induced terminations of preg- 
nancy, marital status and data incidental thereto. 

(22) "Voluntary adoption registry" or "registry" means a place where 
eligible persons, as described in section 39-259A, Idaho Code, may indicate 
their willingness to have their identity and whereabouts disclosed to each 
other under conditions specified in section 39-259A, Idaho Code. 



175 VITAL STATISTICS 39-244 

History. 1983, ch. 7, § 2, p. 23; am. 1985, ch. 59, § 1, p. 

1949, ch. 72, § 1, p. 117; am. 1959, ch. 104, 112; am. 2002, ch. 277, § 1, p. 809; am. 2007, 
§ 2, p. 221; am. 1974, ch. 23, § 61, p. 633; am. ch. 243, § 1, p. 715. 

STATUTORY NOTES 

Cross References. the section to the extent that a detailed corn- 

Board of health and welfare, § 56-1005. parison is impracticable. 



State registrar of vital statistics, § 39-243. 

mendments. 

The 2007 amendment, by ch. 243, rewrote the law as enacted. 



Compiler's Notes. 
Amendments. The words in parentheses so appeared in 



39-242. Duties of director. — The director shall: 

(a) Establish a vital statistics unit with suitable offices properly equipped 
for the preservation of its official records; 

(b) Install statewide system of vital statistics; 

(c) Supervise and require the enforcement of this chapter and the 
regulations of the board made pursuant thereto. The board is authorized to 
adopt, amend and repeal regulations for the purpose of carrying out the 
provisions of this chapter, in accordance with chapter 52, title 67, Idaho 
Code. 

History. 

1949, ch. 72, § 2, p. 117; am. 1974, ch. 23, 
§ 62, p. 633; am. 1983, ch. 7, § 3, p. 23. 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, § 35 et C.J.S. — 39A C.J.S., Health and Environ- 

seq. ment, § 84 et seq. 

66 Am. Jur. 2d, Records and Recording 
Laws, § 1 et seq. 

39-243. State registrar of vital statistics. — The director shall 
designate and appoint a state registrar of vital statistics who shall be 
qualified in accordance with the standards prescribed by law or regulations 
of the board. Compensation shall be fixed in the same manner as the salary 
of other employees of the department. 

History. 

1949, ch. 72, § 3, p. 117; am. 1974, ch. 23, 
§ 63, p. 633; am. 1983, ch. 7, § 4, p. 23. 

39-244. Duties of state registrar. — The state registrar, under the 
direction of the director, shall: 

(a) Have charge of the vital statistics unit; 

(b) Be official custodian of all its files and records; 

(c) Perform the duties prescribed by law and the regulations of the board; 

(d) Have supervisory power over local vital statistics registration and 
local registration officers; 

(e) Enforce this chapter and regulations of the board; and 

(f) Have the authority to delegate portions of the vital records responsi- 
bility to the duly appointed local registrar(s). 



39-245 HEALTH AND SAFETY 176 

History. 

1949, ch. 72, § 4, p. 117; am. 1974, ch. 23, 
§ 64, p. 633; am. 1983, ch. 7, § 5, p. 23. 

STATUTORY NOTES 

Compiler's Notes. 

The "s" in parentheses in subdivision (f) so 
appeared in the law as enacted. 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, § 25 et C.J.S. — 39A C.J.S., Health and Environ- 

seq. ment, § 84 et seq. 

39-245. Certificate forms. — The form of certificates used under the 
provisions of this chapter shall be prescribed by the director and shall 
include as a minimum the items required by the respective standard 
certificates as recommended by the national agency in charge of vital 
statistics; provided, however, that the provisions of section 39-1005, Idaho 
Code, shall be given effect on a certificate to which that section is applicable. 

History. 

1949, ch. 72, § 5, p. 117; am. 1974, ch. 23, 
§ 65, p. 633; am. 1983, ch. 7, § 6, p. 23. 

STATUTORY NOTES 

Cross References. Inflammation of eyes of newborn, birth re- 

Birth certificates, § 39-255. port to state whether or not germicide was 

Certificates for death of stillborn children, instilled in eyes of infant, § 39-904; certifica- 

§39-260. -,.,, tion to prosecuting attorney when compliance 

Congenital syphilis, report of births to state „ , , A „,„ R QQ q« 7 

whethlr required tests made, § 39-1005. not shown, § 39-907 

Correction of factual statements in birth Marriage licenses, § 32-401 et seq 

certificates, § 39-250. Records of local registrars, § 39-249. 

Death certificates, § 39-260. 

39-246. Local registration districts. — The director shall establish 
registration districts and change the boundaries of the same from time to 
time which shall conform to political subdivisions, or combinations or parts 
thereof. 

History. 

1949, ch. 72, § 6, p. 117; am. 1974, ch. 23, 
§ 66, p. 633. 

39-247. Local registration officers. — The state registrar shall ap- 
point local registration officers for such registration districts as are estab- 
lished by the director. Such local registration officers shall meet the 
qualifications fixed by the board, and shall perform such duties as are 
required by the chapter and the regulations of the board. 

History. 

1949, ch. 72, § 7, p. 117; am. 1983, ch. 7, 
§ 7, p. 23. 



177 VITAL STATISTICS 39-250 

STATUTORY NOTES 

Cross References. Penalty for failure to enforce law or perform 

Burial or removal permits, § 39-268. duties, § 39-273. 

39-248. Other employees. — The director shall provide such assis- 
tants as the vital statistics unit may require and determine the compensa- 
tion and duties of persons thus employed. 

History. 

1949, ch. 72, § 8, p. 117; am. 1974, ch. 23, 
§ 67, p. 633; am. 1983, ch. 7, § 8, p. 23. 

39-249. Transmittal of certificates and local records. — Local 
registration officers shall transmit all certificates filed with them to the 
state registrar in accordance with the regulations of the board. Complete 
and accurate copies of all certificates shall be made by the local registrar for 
local records purposes. 

History. 

1949, ch. 72, § 9, p. 117; am. 1983, ch. 7, 
§ 9, p. 23. 

39-250. Completion and correction of certificates — Procedure — 
Other alterations prohibited. — A certificate of any event shall be 
completed, corrected, amended or otherwise altered after being filed with 
the vital statistics unit only in accordance with this chapter and rules 
promulgated by the board. 

(1) A certificate that is amended under the provisions of this section shall 
be marked "amended," except as otherwise provided in this section. The date 
of amendment and a summary description of the evidence submitted in 
support of the amendment shall be filed with or made a part of the record. 
The department shall prescribe by rule the conditions under which addi- 
tions or minor corrections may be made to certificates or records within one 
(1) year after the date of the event without the certificate being marked 
"amended." 

(2) Upon receipt of a notarized voluntary acknowledgment of paternity, 
the state registrar shall amend the certificate of birth to show such 
paternity if paternity is not already shown on the certificate of birth, and 
change the child's surname to that of the father, if both parents so request. 
Such certificate shall not be marked "amended." 

(3) Upon receipt of both a notarized affidavit of nonpaternity signed by 
the husband attesting that he is not the father, and a notarized acknowl- 
edgment of paternity signed by the mother and the alleged father attesting 
that the alleged father is the father, the state registrar shall amend the 
certificate of birth to show such paternity, and change the child's name, if so 
requested by the mother and the alleged father. Such certificate shall not be 
marked "amended." 

(4) Upon receipt of a certified copy of an order of a court of competent 
jurisdiction changing the name of a person born in this state and upon 
request of such person or the parent(s), guardian, or legal representative, 



39-251 HEALTH AND SAFETY 178 

the state registrar shall amend the certificate of birth to show the new 
name. 

(5) When an applicant does not submit the minimum documentation 
required in the rules for amending a vital record in a manner otherwise 
permitted by rule, or when the state registrar has reasonable cause to 
question the validity or adequacy of the applicant's sworn statements or the 
documentary evidence, and if the deficiencies are not corrected, the state 
registrar shall not amend the vital record and shall advise the applicant of 
the reason for this action and shall further advise the applicant of the right 
to petition a court of competent jurisdiction for an order establishing the 
facts necessary to make the requested amendment. 

(6) If an acknowledgment of paternity or affidavit of nonpaternity is 
rescinded pursuant to section 7-1106, Idaho Code, and the certificate of birth 
had been prepared or amended in accordance with the acknowledgment, the 
state registrar shall not release any copies of the certificate of birth except 
as required for a legal proceeding until a court order determining paternity 
has been provided to the state registrar. If the mother was married at the 
time of either conception or birth, or between conception and birth, the court 
shall also determine if the husband is the father of the child. 

History. 1998, ch. 106, § 2, p. 362; am. 2010, ch. 78, 

I.C., § 39-250, as replaced by 1959, ch. 104, § 1, p. 129. 
§ 3, p. 221; am. 1983, ch. 7, § 10, p. 23; am. 

STATUTORY NOTES 

Prior Laws. petition a court" for "right to appeal to a court" 

Former § 39-250, which comprised S.L. and added "for an order establishing the facts 

1949, ch. 72, § 10, p. 117, was repealed by necessary to make the requested amend- 

S.L. 1959, ch. 104, § 3. ment » ' 4 

Amendments. ~ .. , - T . 

The 2010 amendment, by ch. 78, redesig- Co P I Tf, r s Notes ; . lj . . . ' 

nated the subsections numerically; and in The s in parentheses in subdivision (4) so 

subsection (5), inserted "in a manner other- appeared in the law as enacted, 
wise permitted by rule," substituted "right to 

JUDICIAL DECISIONS 

Effect on Judicial Proceedings. competitor in such action, were rendered 

The issues before the magistrate court, con- moot upon the amendment of the certificate 

cerning petitioner's action seeking amend- by the registrar of the bureau of vital statis- 

ment of race designation on his Idaho mar- tics. Phillips v. Consolidated Supply Co., 126 

riage certificate and intervention of business Idaho 973, 895 P.2d 574 (1995). 

39-251. Compensation of local registrars. — Each local registrar 
shall be paid a fee to be established by regulations adopted by the board, for: 

(a) each certificate returned by the local registrar to the state registrar in 
accordance with the provisions of this chapter and the regulations of the 
board; and 

(b) each report of no certificate filed during any calendar month. The 
board may establish a graduated scale for the payment of fees to local 
registrars, either by limiting the aggregate amount of fees to be paid or by 
graduating the fees according to the number of registrations. 



179 VITAL STATISTICS 39-253 

History. 

1949, ch. 72, § 12, p. 117; am. and redesig. 
1983, ch. 7, § 11, p. 23. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-251 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-266 by S.L. 1983, ch. 7, § 28. 
252. 

39-252. Fee for copies, searches and other services — Death 
certificates. — (1) The state registrar shall be entitled to receive a fee of 
thirteen dollars ($13.00) for the making of certified copies of records or for a 
search of the files when no copies are made, provided that the national 
agency in charge of vital statistics may obtain copies or certifications of data 
from records without payment of fees, provided that the state incurs no 
expense in connection therewith. The fee shall be reviewed by the board of 
health and welfare, and future changes in the fee and enactment of fees for 
other services shall be established by rules adopted by the board. 

(2) For each certified copy of a death certificate there shall be charged an 
additional fee of one dollar ($1.00) to be deposited in the state treasurer's 
local government investment pool, a fund hereby created for the Idaho state 
association of county coroners. Such moneys shall be used for the training of 
newly elected coroners and for the continuing education of county coroners 
and their deputies. 

History. and redesig. 1983, ch. 7, § 12, p. 23; am. 2010, 

1949, ch. 72, § 13, p. 117; am. 1970, ch. 2, ch. 355, § 1, p. 932. 
§ 1, p. 4; am. 1981, ch. 200, § 1, p. 353; am. 

STATUTORY NOTES 

Cross References. Former § 39-252 was amended and redes- 
Board of health and welfare, § 56-1005. ignated as § 39-251 by § 11 of S.L. 1983, ch. 

Amendments. 7. 

The 2010 amendment, by ch. 355, in the . 

section heading, added "Death certificates"; Effective Dates. 

added the subsection (1) designation and Section 2 of S.L. 1981, ch. 200 declared an 

therein substituted "thirteen dollars ($13.00)" emergency. Approved April 1, 1981. 

for "four dollars ($4.00)" and "rules" for "reg- S.L. 2010, chapter 355 became law without 

ulations"; and added subsection (2). the signature of the governor, effective July 1, 

Compiler's Notes. 2010. 
This section was formerly compiled as § 39- 

253. 

JUDICIAL DECISIONS 

Decisions Under Prior Law 

Prima Facie Evidence. commission) under the workmen's (now work- 

A certified copy of a death certificate made er's) compensation law were admissible as 

by a physician and also a certified copy of an evidence and were prima facie evidence of the 

attending physician's report of accident to the contents thereof. Hillman v. Utah Power & 

industrial accident board (now industrial Light Co., 56 Idaho 67, 51 P.2d 703 (1935). 

39-253. Accounting for fees. — Fees received from the certifications of 



39-254 HEALTH AND SAFETY 180 

such records, from a search of the files or for other services shall be 
accounted for as prescribed by the state controller. 

History- and redesig. 1983, ch. 7, § 13, p. 23; am. 1994, 

1949, ch. 72, § 14, p. 117; am. 1974, ch. 23, ch. 180, § 71, p. 420. 
§ 68, p. 633; am. 1976, ch. 51, § 8, p. 152; am. 

STATUTORY NOTES 

Cross References. "This act shall be in full force and effect on 

State controller, § 67-1001 et seq. and a ft er the first Monday of January, 1995, if 

Compiler's Notes. tne state board of canvassers has certified 

This section was formerly compiled as § 39- that an amendment to the Constitution of the 

254. State of Idaho has been adopted at the gen- 
Former § 39-253 was amended and redes- eral election of 1994 to ch the name of the 

i^gnated as § 39-252 by § 12 of S.L. 1983, ch. ^ auditor tQ ^ controller> » Since such 

amendment was adopted, the amendment to 
Effective Dates. this section by § 71 of S.L. 1994, ch. 180 

Section 241 of S.L. 1994, ch. 180 provided: became effective January 2, 1995. 

39-254. Payment of fees to local registration officers. — All 

amounts payable to local registrars under the provisions of this chapter 
shall be paid by the respective treasurers of the incorporated city or county 
in which the registration district is situated out of the general fund of such 
incorporated city or county, upon certification by the state registrar. The 
state registrar shall certify to the auditors of the various counties and cities, 
not less than semiannually, or at such other regular times as may be deemed 
expedient, the names of the local registrars and the amounts due each at the 
rates fixed by the board by regulations promulgated pursuant to section 
39-251, Idaho Code. 

History. 

1949, ch. 72, § 15, p. 117; am. and redesig. 
1983, ch. 7, § 14, p. 23. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-254 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-253 by § 13 of S.L. 1983, ch. 

255. 7. 

39-255. Registration of births. — A certificate of each birth which 
occurs in this state shall be filed with the local registrar of the district in 
which the birth occurs, or as otherwise directed by the state registrar, within 
fifteen (15) days of the date of birth. No certificate shall be deemed complete 
until every item of information required shall have been provided or its 
omission satisfactorily accounted for. 

(a) When a birth occurs in an institution or en route thereto, the person 
in charge of the institution or a designated representative shall obtain the 
personal data, prepare the certificate, secure the signatures required, and 
file the certificate within fifteen (15) days of the date of birth. The physician 
or other person in attendance shall provide the medical information re- 
quired by the certificate and certify to the facts of birth. When the physician, 
or other person in attendance, is physically unable to certify to the facts of 



181 VITAL STATISTICS 39-255 

birth within the time prescribed in this section, the person in charge of the 
institution may complete and sign the certificate. 

(b) When a birth occurs outside an institution, the certificate shall be 
prepared and filed by: 

(1) The physician or other person in attendance at or immediately after 
such birth; or 

(2) When no physician or other person is present at or immediately after 
such birth: the father, or in the event of the death, disability or absence of 
the father, the mother; or in the event of the death or disability of the 
mother, the householder or owner of the premises where the birth 
occurred. 

(c) The father, mother or guardian shall verify the facts entered on the 
certificate by their signature. 

(d) When a birth occurs on a moving conveyance within the United States 
and the child is first removed from the conveyance in this state, the birth 
shall be registered in this state and the place where the child is first 
removed shall be considered the place of birth. When a birth occurs on a 
moving conveyance while in international air space or in a foreign country 
or its air space and the child is first removed from the conveyance in this 
state, the birth shall be registered in this state, but the certificate shall show 
the actual place of birth insofar as can be determined. 

(e)(1) If the mother was married at the time of either conception or birth, 
or between conception and birth, the name of the husband shall be 
entered on the certificate as the father of the child, unless: 
(i) Paternity has been determined otherwise by a court of competent 
jurisdiction; or 

(ii) The husband has executed an affidavit of nonpaternity attesting 
that he is not the father, the mother has executed an acknowledgment 
of paternity attesting that the alleged father is the father, and the 
alleged father has executed an acknowledgment of paternity attesting 
that he is the father. Affidavits may be joint or individual or a 
combination thereof, and each signature shall be individually nota- 
rized. In such event, the alleged father shall be shown as the father on 
the certificate. 

(2) If the mother was not married at the time of either conception or birth, 
or between conception and birth, the name of the father shall not be 
entered on the certificate without a notarized voluntary acknowledgment 
of paternity. 

(3) In any case in which paternity of a child is determined by a court of 
competent jurisdiction, the name of the father and surname of the child 
shall be entered on the certificate of birth in accordance with the finding 
and order of the court. 

(4) If the father is not named on the certificate of birth, no other 
information about the father shall be entered on the certificate. 

History. p. 42; am. 1995, ch. 53, § 1, p. 120; am. 1998, 

1949, ch. 72, § 16, p. 117; am. and redesig. ch. 106, § 3, p. 362. 
1983, ch. 7, § 15, p. 23; am. 1995, ch. 28, § 1, 



39-256 HEALTH AND SAFETY 182 

STATUTORY NOTES 

Amendments. present subdivision (e)(1) and paragraph 

This section was amended by two 1995 acts (e)(l)(i) by substituting "unless: (i) Paternity^ 

which appear to be compatible and have been for "unless paternity" and adding "; or" at the 

compiled together. end of paragraph (e)(l)(i); and added para- 

The 1995 amendment, by ch. 28, § 1, in the graph (e)(l)(ii). 

middle of the introductory paragraph, in- 

serted ", or as otherwise directed by the state Compiler s Notes. 

registrar," preceding "within fifteen (15) This section was formerly compiled as § 39- 

days." 256. 

The 1995 amendment, by ch. 53, § 1, di- Former § 39-255 was amended and redes- 

vided the former subdivision (e)(1) into the ignated as § 39-254 by S.L. 1983, ch. 7, § 14. 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, § 108. 
C.J.S. — 39A C.J.S., Health and Environ- 
ment, § 74. 

39-256. Registration of foundlings. — A foundling certificate shall be 
filed for each child of unknown parentage within fifteen (15) days of the time 
the child was found and in the form prescribed by the board. The certificate 
shall be prepared by the person assuming custody of the child and shall be 
filed with the local registrar of the district in which the child was found. 
Such certificate shall be acceptable for all purposes in lieu of a certificate of 
birth. 

History. 

1949, ch. 72, § 17, p. 117; am. and redesig. 
1983, ch. 7, § 16, p. 23. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-256 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-255 by S.L. 1983, ch. 7, § 15. 
257. 

39-257. Marriage of natural parents of person born in Idaho — 
Judicial determination of parentage of person born in Idaho — New 
birth certificates — Procedure. — When a person born in Idaho has been 
legitimated by the subsequent marriage of said person's natural parents and 
immediately assumes or is assigned a name other than is shown on the 
recorded birth certificate, the birth certificate of such person may be 
replaced by a new and conventional certificate (prepared and filed by the 
state registrar), reflecting the name so assumed or assigned, upon proper 
application therefor filed by such legitimated person or the parents or one of 
them, but no one else. Such application shall be in writing and shall be 
accompanied by a copy of the relevant marriage certificate (if there was one 
issued and regardless of where it was issued), certified by the issuer or 
recorder of the same, and, in any event, an affidavit of each of the spouses, 
factually indicating such parentage, the time and place of the marriage, the 
identity of the child concerned and the child named in the original birth 
certificate and giving the assumed or assigned name of the child, which 
instruments shall be filed of record along with the old birth certificate, but 



183 VITAL STATISTICS 39-258 

separate from any replacement issued hereunder (which shall be filed 
separately). 

When a person born in Idaho has had said person's natural parentage 
finally determined by an Idaho court, the court shall require the preparation 
of a report of paternity on a form prescribed and furnished by the state 
registrar. The report shall include such facts as necessary to complete the 
amended birth certificate and be certified by the clerk of the court. If a court 
of some other state issued a decree or report of paternity, the state registrar 
may prepare and file a new and conventional birth certificate for that 
person, reflecting the name(s) of the parent(s) and the child's new name, if 
applicable, upon application made by that person or either or both of the 
persons adjudged to be the natural parent(s), or that person's guardian, but 
no one else. This application shall be accompanied by a certified copy of the 
court decree in question and an affidavit of one (1) person factually 
indicating that the decree involves the same person that the original birth 
certificate involved. These instruments shall be filed of record along with the 
old birth certificate, but separate from any replacement issued hereunder 
(which shall be filed separately). 

It shall be the duty of each clerk of court in the state of Idaho to file with 
the state registrar certified copies of each final decree of paternity determi- 
nation made by that court within fifteen (15) days after each of such decrees 
becomes final. Such certified copies of such decrees and all other instru- 
ments mentioned in this section, except any replacement certificate, are 
confidential and shall not be revealed to any person other than the 
registrant, if of age, the parents or the duly appointed legal representative 
of any of them, or upon court order issued in the interest of justice. 

History. p. 23; am. 1990, ch. 213, § 35, p. 480; am. 

I.C., § 39-259, as replaced by 1959, ch. 104, 1993, ch. 315, § 1, p. 1166; am. 1995, ch. 31, 
§ 4, p. 221; am. and redesig. 1983, ch. 7, § 17, § 1, p. 49. 

STATUTORY NOTES 

Compiler's Notes. ignated as § 39-256 by § 16 of S.L. 1983, ch. 

This section was formerly compiled as § 39- 7, § 16. 
259. The words in parentheses so appeared in 

Former § 39-257 was amended and redes- the law as enacted. 

39-258. Adoption of persons born in Idaho — New birth certifi- 
cate issued to replace original certificate — Procedure — Adoption 
proceedings not open to inspection with certain exceptions — 
Duties of the clerks of courts issuing adoption decrees — Duties of 
state registrar of vital statistics. — (a) Whenever a final decree of 
adoption, issued by an Idaho court, declares a person born in Idaho to be 
adopted by someone other than his or her natural parents, the court shall 
require the preparation of a report (denominated as a certificate in accor- 
dance with Idaho court rules) of adoption on a form prescribed and 
furnished by the state registrar. The report shall include such facts as are 
necessary to locate and identify the certificate of birth of the person adopted; 
shall provide information necessary to establish a new certificate of birth for 



39-258 HEALTH AND SAFETY 184 

the person adopted; and shall identify the order of adoption and be certified 
by the clerk of the court. 

(b) Information necessary to prepare the report of adoption shall be 
furnished by each petitioner for adoption or the petitioner's attorney. The 
provision of such information shall be prerequisite to the issuance of a final 
decree in the matter of the court. 

(c) The report of adoption shall, within fifteen (15) days after becoming 
final, be recorded by the clerk of the court with the vital statistics unit in the 
state department of health and welfare. 

(d) If a court of some other state issued a decree or report of adoption of 
a person actually born in Idaho, the certified copy or report may be similarly 
filed by the person involved or by the adoptive parents. Failure to file 
certified copies or reports of said decrees within said period of time, however, 
shall not bar issuance of a new birth certificate as hereinafter provided. This 
copy of said decree or report shall be filed with and remain a part of the 
records of the vital statistics unit. 

(e) Upon receipt by the vital statistics unit of the certified report of 
adoption, a new certificate of birth shall be issued (but only in cases where 
such person's birth is already recorded with the vital statistics unit) bearing 
among other things the name of the person adopted, as shown in the report 
of adoption, except that a new certificate of birth shall not be established if 
so requested by the court decreeing the adoption, the adoptive parents, or 
the adopted person. No such birth certificate shall have reference to the 
adoption of said person. Such birth certificate shall supplant and constitute 
a replacement of any birth certificate previously issued for said person and 
shall be the only birth certificate open to public inspection. 

Provided however, upon good cause shown and the affidavit of the 
adoptive parents that a diligent search has been made, but no certificate of 
birth for the adoptive child can be located, the probate judge may order the 
adoptive child examined, at the expense of the adoptive parents, by a doctor 
of medicine licensed by the state of Idaho. The examination will be 
conducted pursuant to rules promulgated by the state board of health and 
welfare for the purpose of determining those matters required for the 
issuance of an original birth certificate. Upon the examination of the doctor 
made pursuant to the rules of the state board of health and welfare, the 
court may order the vital statistics unit to issue an original birth certificate 
for the adoptive child based upon those facts determined by the examination 
and included in the court's order. In such case a certified copy of the court 
order shall be provided to the vital statistics unit. 

(f) In respect to form and nature of contents, such a new birth certificate 
shall be identical with a birth certificate issued to natural parents for the 
birth of a child, except that the adoptive parents shall be shown as parents 
and the adopted person shall have the name assigned by the decree of 
adoption as shown on the report of adoption. In a case where a single person 
adopts another person, any new birth certificate may designate the adopting 
parent as adoptive. 

(g) Whenever an adoption decree is amended, annulled or rescinded, the 
clerk of the court shall forward a certified copy of the amendment, annul- 
ment or rescindment to the vital statistics unit in accordance with the time 



185 VITAL STATISTICS 39-259 

provisions in subsection (c) of this section. Unless otherwise directed by the 
court, the vital statistics unit shall amend the certificate of birth upon 
receipt of a certified copy of an amended decree of adoption. Upon receipt of 
a certified copy of a decree of annulment or rescindment of adoption, the 
original certificate of birth shall be restored to its place in the files and the 
new certificate and evidence shall not be subject to inspection except upon 
order of a court of record of this state. 

(h) All records and information specified in this section other than a new 
birth certificate issued hereunder, and all records, files and information of 
any court in this state relating to adoption proceedings, shall not be open to 
inspection except as provided in section 39-259A, Idaho Code, or upon the 
order of a court of record of this state; provided however, that the provisions 
of section 16-1616, Idaho Code, to the contrary notwithstanding, any 
probate court, or the judge thereof, may furnish a certified copy of a decree 
of adoption to any duly authorized agency of the United States or the state 
of Idaho without procuring any prior court order therefor. 

History. 1974, ch. 23, § 60, p. 633; am. and redesig. 

I.C., § 39-218, as replaced by 1959, ch. 104, 1983, ch. 7, § 18, p. 23; am. 1985, ch. 59, § 2, 
§ 1, p. 221; am. 1965, ch. 208, § 1, p. 477; am. p. 112; am. 2005, ch. 391, § 53, p. 192. 

STATUTORY NOTES 

Cross References. Former § 39-258 was amended and redes- 
Adoption of children, § 16-1501 et seq. ignated as § 39-260 by S.L. 1983, ch. 7, § 20. 

Compiler's Notes. Th e wor( is in parentheses so appeared in 

This section was formerly compiled as § 39- the law as enacted. 

218. 

39-259. Adoption of persons born in foreign countries. — 

(a) When it appears from a final decree of adoption issued by an Idaho court 
that a person born in a foreign country has been adopted in Idaho by 
someone other than the person's natural parents, the court shall require the 
preparation of a report (denominated as a certificate in accordance with 
Idaho court rules) of adoption on a form prescribed and furnished by the 
state registrar. The report shall contain evidence from sources determined 
to be reliable by the court as to the true or probable date and place of birth 
and parentage of such person; shall provide information necessary to 
establish a new certificate of birth for the person adopted; and shall identify 
the order of adoption and be certified by the clerk of the court. Upon receipt 
by the state registrar of vital statistics of the report of adoption, the state 
registrar of vital statistics shall make and file a new birth certificate for the 
child when requested to do so by the court decreeing the adoption, the 
adoptive parents, or the adopted person. The new birth certificate shall 
show the true or probable foreign country (and city, town, village or other 
local designation, if known) of birth and the true or probable date of birth as 
established by the court and shown on the court report of adoption, the 
child's new name and parentage as stated in the report of adoption, and any 
other necessary facts as required by the state registrar. This birth certificate 
shall not be evidence of United States citizenship. The form and content of 
the certificate of foreign birth shall be established by the director. 



39-259A HEALTH AND SAFETY 186 

(b) All records and information specified in this section other than a new 
birth certificate issued hereunder, and all records, files and information of 
any court in this state relating to adoption proceedings, shall not be open to 
inspection except as provided in section 39-259A, Idaho Code, or upon the 
order of a court of record of this state; provided however, that the provisions 
of section 16-1616, Idaho Code, to the contrary notwithstanding, any 
probate court, or the judge thereof, may furnish a certified copy of a decree 
of adoption to any duly authorized agency of the United States or the state 
of Idaho without procuring any prior court order therefor. 

(c) The report of adoption shall, within fifteen (15) days after becoming 
final, be recorded by the clerk of the court with the vital statistics unit in the 
state department of health and welfare. 

(d) Whenever an adoption decree is amended, annulled or rescinded, the 
clerk of the court shall forward a certified copy of the amendment, annul- 
ment or rescindment to the vital statistics unit in accordance with the time 
provisions in subsection (c) of this section. Unless otherwise directed by the 
court, the vital statistics unit shall amend the certificate of birth upon 
receipt of a certified copy of an amended decree of adoption. Upon receipt of 
a certified copy of a decree of annulment or rescindment of adoption, the 
Idaho birth certificate shall be removed from the file and along with the 
decree of annulment or rescindment shall be placed in the sealed file for that 
person. Such sealed file shall not be subject to inspection except upon order 
of a court of record of this state. 

History. p. 23; am. 1985, ch. 59, § 3, p. 112; am. 1988, 

I.C., § 39-259A, as added by 1982, ch. 122, ch. 25, § 1, p. 31; am. 2005, ch. 391, § 54, p. 
§ 1, p. 348; am. and redesig. 1983, ch. 7, § 19, 1263. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Adoption of children, § 16-1501 et seq. This section was formerly compiled as § 39- 

259A. 
Prior Laws. Former § 39-259 was amended and redes- 
Former § 39-259, which comprised S.L. ignated as § 39-257 by S.L. 1983, ch. 7, § 17. 
1949, ch. 72, § 19, p. 117, was repealed by The words enclosed in parentheses so ap- 
S.L. 1959, ch. 104, § 4. peared in the law as enacted. 

39-259A. Voluntary adoption registry for providing limited ac- 
cess to birth information of adult adoptees. — (a) The state registrar 
of vital statistics shall establish and maintain a confidential list of qualified 
adult adoptees who have presented a consent regarding the release of 
identifying information about themselves. Any consent by a qualified adult 
adoptee shall be accompanied by the adoptee's desired method of notification 
in the event that a match occurs; however, the state shall not incur costs of 
notification in excess of that part of the fee charged to the applicant for the 
purpose of notification. Any consent shall also indicate whether the qualified 
adult adoptee desires release of his identifying information if a match occurs 
after his death. The qualified adult adoptee may revise his consent with 
respect to change of address or method of notification. Any name and 
accompanying information shall be removed from the list upon the verified 
written request of the listed adoptee. The registrar shall maintain a closed 



187 VITAL STATISTICS 39-259A 

record of such list and accompanying information, except as provided in 
accordance with the provisions of this section. 

(b) The state registrar of vital statistics shall establish and maintain a 
confidential list of qualified birthparents who have presented a consent 
regarding the release of identifying information about themselves. Any 
consent by a qualified birthparent shall be accompanied by the birthparent's 
desired method of notification in the event that a match occurs; however, the 
state shall not incur costs of notification in excess of that part of the fee 
charged to the applicant for the purpose of notification. Any consent shall 
also indicate whether the qualified birthparent desires release of his 
identifying information if a match occurs after his death. The qualified 
birthparent may revise his consent with respect to change of address or 
method of notification. Any name and accompanying information shall be 
removed from the list upon the verified written request of the listed 
birthparent. The registrar shall maintain a closed record of such list and 
accompanying information, except as provided in accordance with the 
provisions of section 39-258(h), and subsections (b), (c) and (d) of section 
39-259, Idaho Code. Any birthparent who, in terminating his parental 
rights, used an alias and this alias is listed in the original sealed birth 
certificate, may also file a consent with the registry. A birthparent shall not 
be matched with a qualified adult adoptee without the consent of the other 
birthparent unless: 

(1) There is only one (1) birthparent listed on the birth certificate; or 

(2) The other birthparent is deceased; or 

(3) The other birthparent is unable to be located by the department of 
health and welfare or by a licensed child placement agency designated by 
the department of health and welfare, after a search, which shall consist, 
at a minimum, of a certified letter to the other birthparent at the last 
known address and a newspaper advertisement made in the county of the 
last known address; such search to be completed within ninety (90) days 
and the cost of said search to be fully funded and completed by the 
birthparent seeking a match; said search to be in accordance with the 
rules and regulations promulgated by the department. 

(c) The state registrar of vital statistics shall establish and maintain a 
confidential list of qualified adult birth siblings who have presented a 
consent regarding the release of identifying information about themselves. 
Any consent by a qualified birth sibling shall be accompanied by the birth 
sibling's desired method of notification in the event that a match occurs; 
however, the state shall not incur costs of notification in excess of that part 
of the fee charged to the applicant for the purpose of notification. Any 
consent shall also indicate whether the qualified birth sibling desires 
release of his identifying information if a match occurs after his death. The 
qualified birth sibling may revise his consent with respect to change of 
address or method of notification. Any name and accompanying information 
shall be removed from the list upon the verified written request of the listed 
birth sibling. The registrar shall maintain a closed record of such list and 
accompanying information, except as provided in accordance with the 
provisions of sections 39-258(h) and 39-259(b), Idaho Code, and this section. 

(d) The state registrar shall maintain a confidential list of relatives of 
deceased qualified adult adoptees and relatives of deceased qualified 



39-259A HEALTH AND SAFETY 188 

birthparents who have presented a consent regarding the release of identi- 
fying information about themselves. Any consent by such relative shall be 
accompanied by the person's desired method of notification in the event that 
a match occurs; however, the state shall not incur costs of notification in 
excess of that part of the fee charged to the applicant for the purpose of 
notification. Such relative may revise his consent with respect to change of 
address or method of notification. Any name and accompanying information 
shall be removed from the list upon the verified written request of the listed 
relative. The state registrar shall maintain a closed record of such list and 
accompanying information, except as provided in accordance with the 
provisions of this section. 

(e) The state registrar shall regularly review the lists provided for in 
subsections (a), (b), (c) and (d) of this section, and any other nonsealed 
administrative files or records within the office to determine if there is a 
match. If it appears that a match has occurred, then and only then is the 
registrar authorized to proceed to confirm the match through recourse to 
sealed documents on file in the office of the registrar. When a match is 
confirmed, the registrar shall notify each party, by its designated method 
only, prior to an exchange of identifying information. Nothing in this section 
shall be construed to allow any state or local governmental department, 
agency, or institution, or any employee thereof, to solicit any consent for the 
release of identifying information. 

(f) When a match is made and both the adopted person and the 
birthparent or parents, submit to the state registrar a notarized request for 
a copy of the original birth record of the adopted person, the state registrar 
shall issue such copy, marked "NOT FOR OFFICIAL USE", at the usual cost 
of certificate copies. 

(g) Nothing in this section shall be construed to allow the registrar to 
issue a copy of the original birth certificate to any registrant, except as 
provided for in subsection (f) of this section. 

(h) Except upon order of a court of record of this state and notwithstand- 
ing any other provision of law, the information acquired by the registry shall 
not be disclosed under its public records law, sunshine or freedom of 
information legislation, rules or practice. 

(i) The initial fee to be charged each person requesting that his name be 
placed on the list provided for in subsections (a), (b), (c) and (d) of this 
section, and for the services provided by the registrar in establishing and 
implementing the registry pursuant to this section, shall be ten dollars 
($10.00). Except for the cost of the search described in subsection (b)(3) of 
this section, the fee shall cover all direct and indirect costs incurred 
pursuant to this section. The state board of health and welfare shall 
annually review the fees and expenses incurred pursuant to this section 
and, as needed, adjust the fees charged to cover the expenses of adminis- 
tering the provisions of this section. 

History. § 4, p. 112; am. 1990, ch. 213, § 36, p. 480; 

I.C., § 39-259A, as added by 1985, ch. 59, am. 1993, ch. 315, § 2, p. 1166. 



189 VITAL STATISTICS 39-260 

STATUTORY NOTES 

Compiler's Notes. 

Former § 39-259A was amended and redes- 
ignated as § 39-259 by S.L. 1983, ch. 7, § 19. 

39-260. Registration of deaths and stillbirths. — (1) A certificate of 
each death which occurs in this state shall be filed with the local registrar 
of the district in which the death occurs, or as otherwise directed by the 
state registrar, within five (5) days after the occurrence. However, the board 
shall, by rule and upon such conditions as it may prescribe to assure 
compliance with the purposes of the vital statistics act, provide for the filing 
of death certificates without medical certifications of cause of death in cases 
in which compliance with the applicable prescribed period would result in 
undue hardship; but provided, however, that medical certifications of cause 
of death shall be provided by the certifying physician, physician assistant, 
advanced practice professional nurse or coroner to the vital statistics unit 
within fifteen (15) days from the filing of the death certificate. No certificate 
shall be deemed complete until every item of information required shall 
have been provided or its omission satisfactorily accounted for. When death 
occurs in a moving conveyance in the United States and the body is first 
removed from the conveyance in this state, the death shall be registered in 
this state and the place where the body is first removed shall be considered 
the place of death. When a death occurs on a moving conveyance while in 
international airspace or in a foreign country or its airspace and the body is 
first removed from the conveyance in this state, the death shall be registered 
in this state but the certificate shall show the actual place of death insofar 
as can be determined. If the place of death is unknown but the dead body is 
found in this state, the certificate of death shall be completed and filed in 
accordance with this section. The place where the body is found shall be 
shown as the place of death. If the date of death is unknown, it shall be 
determined by approximation. 

The person in charge of interment or of removal of the body from the 
district shall be responsible for obtaining and filing the certificate. Said 
person shall obtain the required information from the following persons, 
over their respective signatures: 

(a) Personal data shall be supplied by the person best qualified to supply 
them; and 

(b) Except as otherwise provided, medical data shall be supplied by the 
physician, physician assistant or advanced practice professional nurse 
who attended the deceased during the last illness, who shall certify to the 
cause of death according to his best knowledge, information and belief 
within seventy-two (72) hours from time of death. In the absence of the 
attending physician, physician assistant or advanced practice profes- 
sional nurse or with said person's approval the certificate may be 
completed and signed by said person's associate, who must be a physician, 
physician assistant or advanced practice professional nurse, the chief 
medical officer of the institution in which death occurred, or the physician 
who performed an autopsy upon the decedent, provided such individual 
has access to the medical history of the case, views the deceased at or after 
death, and death is due to natural causes. 



39-260 HEALTH AND SAFETY 190 

(2) The person in charge of interment or of removal of the body from the 
district shall refer the following cases to the coroner who shall make an 
immediate investigation, supply the necessary medical data, and certify to 
the cause of death: 

(a) When no physician, physician assistant or advanced practice profes- 
sional nurse was in attendance during the last illness of the deceased; 

(b) When the circumstances suggest that the death occurred as a result of 
other than natural causes; or 

(c) When death is due to natural causes and the physician, physician 
assistant or advanced practice professional nurse who attended the 
deceased during the last illness or said person's designated associate who 
must be a physician, physician assistant or advanced practice profes- 
sional nurse, is not available or is physically incapable of signing. 

(3) When a death is presumed to have occurred within this state but the 
body cannot be located, a death certificate may be prepared by the state 
registrar upon receipt of an order of a court of record of this state, which 
shall include the finding of facts required to complete the death certificate. 
Such a death certificate shall be marked "presumptive" and shall show on its 
face the date of registration and shall identify the court and the date of 
decree. 

(4) Each stillbirth, defined as a spontaneous fetal death of twenty (20) 
completed weeks gestation or more, based on a clinical estimate of gestation, 
or a weight of three hundred fifty (350) grams (twelve and thirty-five 
hundredths (12.35) ounces) or more, which occurs in this state shall be 
registered on a certificate of stillbirth within five (5) days after delivery with 
the local registrar of the district in which the stillbirth occurred. All induced 
terminations of pregnancy shall be reported in the manner prescribed in 
section 39-261, Idaho Code, and shall not be reported as stillbirths. No 
certificate shall be deemed complete until every item of information re- 
quired shall have been provided or its omission satisfactorily accounted for. 

(a) When a stillbirth occurs in an institution, the person in charge of the 
institution or a designated representative shall prepare the certificate, 
obtain the signature of the physician, physician assistant or advanced 
practice professional nurse in attendance, except as otherwise provided in 
subsection (5) of this section, who shall provide the medical data, and 
forward the certificate to the mortician or person acting as such. In the 
absence of the attending physician, physician assistant or advanced 
practice professional nurse or with said person's approval the certificate 
may be completed and signed by said person's associate, who must be a 
physician, physician assistant or advanced practice professional nurse, 
the chief medical officer of the institution in which the stillbirth occurred, 
or the physician who performed an autopsy on the stillborn fetus, 
provided such individual has access to the medical history of the case and 
views the fetus at or after stillbirth. The mortician or person acting as 
such shall provide the disposition information and file the certificate with 
the local registrar. 

(b) When a stillbirth occurs outside an institution, the mortician or 
person acting as such shall complete the certificate, obtain the medical 
data from and signature of the attendant at the stillbirth, except as 



191 VITAL STATISTICS 39-260 

otherwise provided in subsection (5) of this section, and file the certificate. 
If the attendant at or immediately after the stillbirth is not a physician, 
physician assistant or advanced practice professional nurse, the coroner 
shall investigate and sign the certificate of stillbirth. 

(c) When a stillbirth occurs in a moving conveyance in the United States 
and the stillborn fetus is first removed from the conveyance in this state, 
the stillbirth shall be registered in this state and the place where the 
stillborn fetus is first removed shall be considered the place of stillbirth. 
When a stillbirth occurs in a moving conveyance while in international 
airspace or in a foreign country or its airspace and the stillborn fetus is 
first removed from the conveyance in this state, the stillbirth shall be 
registered in this state but the certificate shall show the actual place of 
stillbirth insofar as can be determined. 

(d) When a stillborn fetus is found in this state and the place of stillbirth 
is unknown, it shall be reported in this state. The place where the 
stillborn fetus was found shall be considered the place of stillbirth. 

(e) The name of the father shall be entered on the certificate of stillbirth 
as provided by section 39-255, Idaho Code. 

(5) The person responsible for the preparation or completion of the 
stillbirth certificate as stated in subsections (4)(a) and (b) of this section 
shall refer the following cases to the coroner who shall make an immediate 
investigation, supply the necessary medical data and certify to the cause of 
stillbirth: 

(a) When the circumstances suggest that the stillbirth occurred as a 
result of other than natural causes, excepting legally induced abortions, 
as defined by section 39-241, Idaho Code; or 

(b) When death is due to natural causes and the physician, physician 
assistant or advanced practice professional nurse in attendance at or 
immediately after the stillbirth or said person's designated associate is 
not available or is physically incapable of signing. 

History. p. 23; am. 1995, ch. 28, § 2, p. 42; am. 2002, 

1949, ch. 72, § 18, p. 117; am. 1972, ch. Ill, ch. 277, § 2, p. 809; am. 2007, ch. 244, § 1, p. 
§ 1, p. 226; am. and redesig. 1983, ch. 7, § 20, 719. 

STATUTORY NOTES 

Cross References. 260(e), Idaho Code"; added the introductory 

Congenital syphilis, reports of stillbirths to paragraph in subsection (5); in subsection 

state whether required tests made, § 39- (5)(a), deleted "the local registrar shall refer 

1005. the case to the coroner in the county where 

Vital statistics act, § 39-240 and notes the stillbirth occurred. Said coroner shall 

thereto. make an immediate investigation, supply the 

. . necessary medical data, and certify to the 

An ^ n ™® nts * ^ . . nAA L ,_ cause of stillbirth" from the end; and added 

The 2007 amendment, by ch. 244, through- subsec tion (5)(b). 

out the section, inserted "physician assistant, 

advanced practice professional nurse," or sim- Compiler's Notes. 

ilar language; in subsections (l)(b) and (4)(a), This section was formerly compiled as § 39- 

twice substituted "person's" for "physician's," 258. 

and inserted "who must be a"; added subsec- Former § 39-260 was amended and redes- 

tion (2)(c) and made related redesignations; in ignated as § 39-268 by S.L. 1983, ch. 7, § 30. 

subsections (4)(a) and (4)(b), substituted "sub- The words in parentheses so appeared in 

section (5) of this section" for "section 39- the law as enacted. 



39-260A HEALTH AND SAFETY 192 

JUDICIAL DECISIONS 

Admissibility. prima facie evidence of the facts stated 

As an exception to the hearsay rule, a therein. Corey v. Wilson, 93 Idaho 54, 454 P.2d 

properly filed certificate of death, or a copy 951 (1969). 
thereof certified by the state registrar, is 

Decisions Under Prior Law 

Admissibility. thereof. Hillman v. Utah Power & Light Co., 

A certified copy of a death certificate made 56 Idaho 67, 51 P.2d 703 (1935). 

by a physician and also a certified copy of an a statement made by the deceased to his 

attending physician's report of accident to the physician as a part of the history of the case 

industrial accident board (now industrial as to how the injury was received was admis- 

commission) under the workers' compensa- s ible. Hillman v. Utah Power & Light Co., 56 

tion law were admissible as evidence and Idaho 67 51 P.2d 703 (1935). 
were prima facie evidence of the contents 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, § 108. 
C.J.S. — 39 C.J.S., Health and Environ- 
ment, § 74. 

39-260A. Transportation of dead human bodies. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. am. 1967, ch. 180, § 1, p. 598; am. 1974, ch. 

This section, which comprised 1949, ch. 72, 23, § 69, p. 633, was repealed by S.L. 1983, 
§ 20A, as added by 1953, ch. 242, § 1, p. 365; ch. 7, § 21. 

39-261. Induced abortion reporting forms — Compilations. — 

(a) The vital statistics unit shall establish an induced abortion reporting 
form, which shall be used for the reporting of every induced abortion 
performed in this state. However, no information shall be collected which 
would identify the woman who had the abortion. Such form shall be 
prescribed by the department and shall include as a minimum the items 
required by the standard reporting form as recommended by the national 
center for health statistics, of the United States department of health and 
human services. 

The completed form shall be filed by the attending physician and sent to 
the vital statistics unit within fifteen (15) days after the end of each 
reporting month. The submitted form shall be an original, typed or written 
legibly in durable ink, and shall not be deemed complete until every item of 
information required shall have been provided or its omission satisfactorily 
accounted for. Carbon copies shall not be acceptable. 

(b) The department of health and welfare shall prepare and keep on 
permanent file compilations of the information submitted on the induced 
abortion reporting forms pursuant to such rules and regulations as estab- 
lished by the department of health and welfare, which compilations shall be 
a matter of public record. 



193 VITAL STATISTICS 39-263 

History. § 1, p. 424; am. and redesig. 1983, ch. 7, § 22, 

I.C., § 39-273, as added by 1977, ch. 163, p. 23. 

STATUTORY NOTES 

Compiler's Notes. For further information on the national 

This section was formerly compiled as § 39- center for health statistics, see httpill 
273. www.cdc.gov/nchs/. 

Former § 39-261 was amended and redes- 
ignated as § 39-267 by § 29 of S.L. 1983, ch. 
7. 

39-262. Registration of marriage — Marriage certificates filed. — 

Every person who performs a marriage ceremony shall prepare and sign a 
certificate of marriage in duplicate, one (1) of which shall be given to the 
parties and the other filed by said person within ten (10) days after the 
ceremony with the county recorder. Every county recorder shall forward to 
the state registrar on or before the 15th day of each calendar month the 
certificates of marriage which were filed with said recorder during the 
preceding calendar month. The form of certificate of marriage shall be 
prescribed by the board, in accordance with the provisions of sections 32-401 
and 32-402, Idaho Code. No certificate shall be deemed complete until every 
item of information required shall have been provided or its omission 
satisfactorily accounted for. 

History. 

1949, ch. 72, § 27, p. 117; am. and redesig. 
1983, ch. 7, § 24, p. 23. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Marriage licenses, § 32-401 et seq. This section was formerly compiled as § 39- 

Prior Laws. 267. 

Former § 39-262, which comprised 1959, 
ch. 104, § 5, p. 221, was repealed by S.L. 
1983, ch. 7, § 23. 

39-263. Marriage license fees. — Every county recorder shall be paid 
a fee, to be established by regulations adopted by the board, for each 
marriage certificate recorded with said recorder and forwarded to the state 
registrar. The recording fee shall be as provided by section 31-3205, Idaho 
Code. 

History. 1983, ch. 7, § 25, p. 23; am. 1984, ch. 29, § 3, 

1949, ch. 72, § 28, p. 117; am. and redesig. p. 50; am. 1989, ch. 12, § 1, p. 13. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-263 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-274 by § 36 of S.L. 1983, ch. 
268. 7. 



39-264 HEALTH AND SAFETY 194 

39-264. Registration of persons authorized to perform marriage 
ceremony. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. Former § 39-264 was amended and redes- 

This section, which was formerly compiled ignated as § 39-270 by § 32 of S.L. 1983, ch. 
as § 39-270, comprised 1949, ch. 72, § 30, p. 7. 
117; am. and redesig. 1983, ch. 7, § 26, p. 23, 
was repealed by S.L. 1992, ch. 37, § 1. 

39-265. Registration of divorces — Annulments of marriage. — 

(a) A certificate of each divorce or annulment granted by any court in this 
state shall be filed by the clerk of the court with the vital statistics unit and 
shall be registered if it has been completed and filed in accordance with this 
chapter. The certificate shall be prepared by the petitioner or the petitioner's 
legal representative on a form furnished by the state registrar and shall be 
presented to the clerk of the court with the petition. In all cases the 
completed certificate shall be prerequisite to the granting of the final decree. 
No certificate shall be deemed complete until every item of information 
required shall have been provided or its omission satisfactorily accounted 
for. 

(b) Immediately after the decree becomes final, the certificate shall be 
forwarded by the clerk to the state registrar on the 15th day of the calendar 
month next succeeding. 

History. 

1949, ch. 72, § 29, p. 117; am. and redesig. 
1983, ch. 7, § 27, p. 23. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-265 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-271 by § 33 of S.L. 1983, ch. 
269. 7. 

39-266. Fee for court clerk. — The clerk of the court shall be paid a fee 
for each certificate forwarded by the clerk to the state registrar in accor- 
dance with the provisions of this chapter and regulations of the board. Said 
fee to be collected as a part of the court costs and be assessed by the court 
according to law. Said fee to be established by regulations adopted by the 
board. 

History. 

1949, ch. 72, § 11, p. 117; am. and redesig. 
1983, ch. 7, § 28, p. 23. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-266 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-273 by § 35 of S.L. 1983, ch. 
251. 7. 



195 VITAL STATISTICS 39-268 

39-267. Delayed registration. — Any certificate required to be filed 
under this chapter accepted for filing after the time prescribed by the board 
shall be filed in accordance with the minimum standards prescribed by the 
national agency in charge of vital statistics. 

(1) If a delayed certificate of birth is rejected under the provisions 
prescribed, a petition signed and sworn to by the petitioner may be filed with 
a court of competent jurisdiction for an order establishing a record of the 
date and place of birth and the parentage of the person whose birth is to be 
registered. An order entered following the procedure established in section 
39-278, Idaho Code, shall be acceptable evidence for establishing a delayed 
certificate of birth in the vital statistics unit. 

(2) If a delayed certificate of death is rejected under the provisions 
prescribed, a petition signed and sworn to by the petitioner may be filed with 
a court of competent jurisdiction for an order establishing a record of the 
date and place of death. An order entered following the procedure estab- 
lished in section 39-278, Idaho Code, shall be acceptable evidence for 
establishing a delayed certificate of death. 

History. 1983, ch. 7, § 29, p. 23; am. 2010, ch. 78, § 2, 

1949, ch. 72, § 21, p. 117; am. and redesig. p. 129. 

STATUTORY NOTES 

Amendments. Compiler's Notes. 

The 2010 amendment, by ch. 78, redesig- This section was formerly compiled as § 39- 

nated the subsections numerically; and in the 261. 

last sentence in each, substituted "An order Former § 39-267 was amended and redes- 
entered following the procedure established ignated as § 39-262 by § 24 of S.L. 1983, ch. 
in section 39-278, Idaho Code" for "Such or- 7. 
der." 

39-268. Authorization for final disposition. — (1) The mortician or 
person acting as such who first assumes possession of a dead body or 
stillborn fetus shall make a written report to the registrar of the district in 
which death or stillbirth occurred or in which the body or stillborn fetus was 
found within twenty-four (24) hours after taking possession of the body or 
stillborn fetus, on a form prescribed and furnished by the state registrar and 
in accordance with rules promulgated by the board. Except as specified in 
subsection (2) of this section, the written report shall serve as permit to 
transport, bury or entomb the body or stillborn fetus within this state, 
provided that the mortician or person acting as such shall certify that the 
physician, physician assistant or advanced practice professional nurse in 
charge of the patient's care for the illness or condition which resulted in 
death or stillbirth has been contacted and has affirmatively stated that said 
physician, physician assistant or advanced practice professional nurse or 
the designated associate according to section 39-260(l)(b) or (4)(a), Idaho 
Code, will sign the certificate of death or stillbirth. 

(2) The written report as specified in subsection (1) of this section shall 
not serve as a permit to: 

(a) Remove a body or stillborn fetus from this state; 

(b) Cremate the body or stillborn fetus; or 



39-269 HEALTH AND SAFETY 196 

(c) Make disposal or disposition of any body or stillborn fetus in any 
manner when inquiry is required under chapter 43, title 19, Idaho Code, 
or section 39-260(2) or (5), Idaho Code. 

(3) In accordance with the provisions of subsection (2) of this section, the 
mortician or person acting as such who first assumes possession of a dead 
body or stillborn fetus shall obtain an authorization for final disposition 
prior to final disposal or removal from the state of the body or stillborn fetus. 
The physician, physician assistant, advanced practice professional nurse or 
coroner responsible for signing the death or stillbirth certificate shall 
authorize final disposition of the body or stillborn fetus, on a form prescribed 
and furnished by the state registrar. If the body is to be cremated, the 
coroner must also give additional authorization. In the case of stillbirths, 
the hospital may dispose of the stillborn fetus if the parent(s) so requests; 
authorization from the coroner is not necessary unless the coroner is 
responsible for signing the certificate of stillbirth. 

(4) When a dead body or stillborn fetus is transported into the state, a 
permit issued in accordance with the law of the state in which the death or 
stillbirth occurred or in which the body or stillborn fetus was found shall 
authorize the transportation and final disposition within the state of Idaho. 

(5) A permit for disposal shall not be required in the case of a dead fetus 
of less than twenty (20) weeks gestation and less than three hundred fifty 
(350) grams or twelve and thirty-five hundredths (12.35) ounces where 
disposal of the fetal remains is made within the institution where the 
delivery of the dead fetus occurred. 

History. § 1, P- 243; am. and redesig. 1983, ch. 7, § 30, 

1949, ch. 72, § 20, p. 117; am. 1972, ch. 123, p. 23; am. 2007, ch. 244, § 2, p. 719. 

STATUTORY NOTES 

Cross References. ence, and near the end, substituted "desig- 

Cemeteries, Title 27, Idaho Code. nated associate" for "physician's designate," 

liof eT lmerS ' regiStrati ° n ""* hCenSeS ' § 54 " and corrected the section references; updated 

q ' the reference in paragraph (2)(c); and updated 

Amendments. an internal reference in subsection (3). 

The 2007 amendment, by ch. 244, redesig- 
nated the sections; in subsections (1) and (3), Compiler's Notes. 

inserted "physician assistant or advanced This section was formerly compiled as § 39- 

practice professional nurse," or similar Ian- 260. 

guage; in subsection (1), substituted "rules" Former § 39-268 was amended and redes- 

for "regulations," updated an internal refer- ignated as § 39-263 by S.L. 1983, ch. 7, § 25. 

RESEARCH REFERENCES 

Am. Jur. — 22AAm. Jur. 2d, Dead Bodies, C.J.S. — 39A C.J.S., Health and Environ- 

§§ 39, 40. ment, § 75. 

39-269. Disinterment — Rules. — No body or stillborn fetus shall be 
disinterred within the state of Idaho except upon a permit granted by the 
state registrar of vital statistics. The forms of disinterment permits shall be 
prepared by the state registrar. Disinterment and removal must be done 
under the personal supervision of a licensed mortician, and only upon 



197 VITAL STATISTICS 39-270 

verified application of the person or persons having the highest authority 
under the provisions of section 54-1142, Idaho Code. Only such persons as 
are actually necessary shall be present. The coffin shall not be opened either 
at place of disinterment or place of destination, except special permit be 
issued by the state registrar. And in case of disinterment of bodies dead by 
reason of contagious and infectious diseases, as shown by the certificate of 
death given by the certifying physician or coroner, the sexton and all other 
persons engaged in such removal or being present shall immediately 
thereafter change and disinfect their clothing and properly disinfect their 
hands, head and face, provided, that such disinterment may also be 
governed by rules promulgated by the state board of health and welfare and 
a synopsis of the same shall be printed on the back of every permit. In case 
of any contagious and infectious disease where remains are to be shipped to 
points in other states, permission must first be obtained from the state 
health officer of such state. The state registrar may also issue a special 
disinterment permit for legal purposes. This permit for legal purposes shall 
be granted only upon application of a prosecuting attorney, the attorney 
general of this state, or the coroner of the county in which the body is 
interred, stating therein such facts which make it evident to the state 
registrar that the ends of justice require that disinterment be permitted. 
Such special disinterment for legal purposes shall be governed by rules 
promulgated by the state board of health and welfare and a synopsis of the 
same shall be printed on the back of every such special disinterment permit 
for legal purposes. Bodies in a receiving vault when prepared by a licensed 
mortician shall not be regarded as disinterred bodies until after the 
expiration of thirty (30) days. 

History. § 59, p. 633; am. and redesig. 1983, ch. 7, 

C.S., § 1633a, as added by 1923, ch. 89, § 31, p. 23; am. 1994, ch. 105, § 5, p. 234; am. 
§ 1, p. 101; I.C.A., § 38-210; am. 1974, ch. 23, 2006, ch. 109, § 1, p. 302. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Attorney general, § 67-1401 et seq. This section was formerly compiled as § 39- 

Amendments. 211. 

The 2006 amendment by ch. 109, inserted Former § 39-269 was amended and redes- 

and only upon verified application of the • ted as § 39 . 265 b g L 19g3 ch ? § 27 
person or persons having the highest author- 6 s J ' * 

ity under the provisions of section 54-1142, 
Idaho Code" at the end of the third sentence. 

RESEARCH REFERENCES 

Am. Jur. — 22AAm. Jur. 2d, Dead Bodies, A.L.R. — Disinterment in criminal cases. 

§ 50 et seq. 63 A.L.R.3d 1294. 

39-270. Disclosure of information. — (a) Certificates and records in 
the custody of the state registrar shall be open to inspection subject to the 
provisions of this chapter and the rules of the board, the provisions of section 
9-302, Idaho Code, to the contrary notwithstanding; and it shall be unlawful 
for any state or local official or employee under this chapter to disclose any 



39-271 HEALTH AND SAFETY 198 

data contained in the records, except as authorized by this chapter and the 
rules of the board. 

(b) A complete copy, or any part of a certificate, may be issued to any 
applicant who can show direct and tangible interest in the record for which 
he applies. A complete copy, or any part of a certificate, shall be issued upon 
request to a state, federal or local public agency for child support enforce- 
ment purposes pursuant to chapters 10, 11 and 12, title 7, Idaho Code, and 
sections 16-1628, 20-524, 32-710A, and 56-203, Idaho Code, or for the 
purpose of investigation of fraud related to benefit payments. Subject to 
such provisions as the board may prescribe, data contained on records may 
be used by federal, state or municipal agencies for the purpose of verification 
of data. 

(c) As provided in chapter 3, title 9, Idaho Code, data contained on records 
may be used for research, public health or statistical purposes. No lists of 
registration shall be compiled for public use. 

(d) The manner of keeping local records and the use thereof shall be 
prescribed by the board, in keeping with the provisions of this section. 

(e) When one hundred (100) years have elapsed after the date of birth, or 
fifty (50) years have elapsed after the date of death, stillbirth, marriage or 
divorce, the records of these events in the custody of the state registrar shall 
become public records and information shall be made available in accor- 
dance with chapter 3, title 9, Idaho Code. 

History. ch. 213, § 37, p. 480; am. 1993, ch. 315, § 3, p. 

1949, ch. 72, § 24, p. 117; am. 1978, ch. 73, 1166; am. 2004, ch. 23, § 8, p. 25; am. 2005, 

§ 1, p. 147; am. and redesig. 1983, ch. 7, § 32, c h. 391, § 55, p. 1263. 
p. 23; am. 1985, ch. 250, § 1, p. 583; am. 1990, 

STATUTORY NOTES 

Compiler's Notes. parable provisions may be found in §§ 9-337 

This section was formerly compiled as § 39- to 9-350. 
264. 

Former § 39-270 was amended and redes- Effective Dates. 

ignated as § 39-264 by § 26 of S.L. 1983, ch. Section 111 of S.L. 1990, ch. 213 as 

7 and was subsequently repealed by § 1 of amended by § 16 of S.L. 1991, ch. 329 pro- 

S.L. 1992, ch. 37. vided that §§ 3 through 45 and 48 through 

Section 9-302, referred to in subsection (a) 110 of the act should take effect July 1, 1993 

of this section, was repealed by S.L. 1990, ch. and that §§ 1, 2, 46 and 47 should take effect 

213, § 2, effective July 1, 1990. Present com- July 1, 1990. 

JUDICIAL DECISIONS 

Public Information. performing the autopsy, and the lab techni- 

This section only limits disclosure of infor- cians who performed the blood-alcohol con- 

mation compiled by the state statistics unit tent tests, it was public information in the 

and held in custody by the state registrar; hands of those individuals, and this section 

where the result of the blood-alcohol test did not prevent its disclosure at the wrongful 

performed on the accident victim was in the death trial. Stattner v. City of Caldwell, 111 

custody of the county coroner, the physician Idaho 714, 727 P.2d 1142 (1986). 

39-271. Records of institutions. — Every person in charge of an 
institution, public or private, to which persons resort for treatment of 
diseases, confinements, or are committed by law, shall record all the 



199 VITAL STATISTICS 39-273 

personal and statistical particulars relative to those persons admitted or 
confined to their institutions that are required on the forms or the certifi- 
cates prescribed by the board. The record shall be made by them at the time 
of admission of the patients and at such other times as may be required. The 
personal and statistical particulars and information shall be obtained from 
the individuals themselves, if it is practicable to do so, and when they can 
not be so obtained, they shall be secured in as complete a manner as possible 
from relatives, friends or other persons acquainted with the facts. 

History. 

1949, ch. 72, § 25, p. 117; am. and redesig. 
1983, ch. 7, § 33, p. 23. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-271 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-276 by § 38 of S.L. 1983, ch. 
265. 7. 

39-272. Duties to provide information. — For the purposes of 
compilation of the vital record, any person having knowledge of the facts 
shall furnish to the state registrar such information as they may possess 
regarding any birth, death, stillbirth, marriage or divorce. 

History. 

I.C., § 39-272, as added by 1983, ch. 7, 
§ 34, p. 23. 

STATUTORY NOTES 

Compiler's Notes. 

Former § 39-272 was amended and redes- 
ignated as § 39-240 by § 1 of S.L. 1983, ch. 7. 

39-273. Penalties. — (a) The following acts, if committed unlawfully, 
purposely and with the intent to deceive, shall be felonies punishable by a 
fine of not more than five thousand dollars ($5,000) or imprisonment of not 
more than five (5) years, or both: 

(1) furnishing false or fraudulent information affecting any certificate, 
record or report required by this chapter; or 

(2) making, counterfeiting, altering, amending or mutilating of any 
certificate, record or report, or any certified copy of a certificate, record, or 
report authorized by this chapter; or 

(3) obtaining, possessing, using, selling, or furnishing, or attempting to 
obtain, possess, use, sell, or furnish, any certificate, record, or report, or 
certified copy of a certificate, record, or report, which has been unlawfully 
made, counterfeited, altered, amended, or mutilated; or 

(4) furnishing, selling or using any certificate, record or report, or any 
certified copy of a certificate, record or report, authorized by this chapter 
for the purpose of misrepresenting the age or identity of a person or 
misrepresenting the facts relating to a birth, death or adoption. 

(b) The following acts, if committed with knowledge, recklessness or with 
criminal negligence, shall be misdemeanors punishable by a fine of not more 



39-274 HEALTH AND SAFETY 200 

than one thousand dollars ($1,000) or imprisonment of not more than one (1) 
year, or both: 

(1) except where a different penalty is provided by this section, violating 
any of the provisions of this chapter or the regulations promulgated 
pursuant to this chapter by the board; or 

(2) neglecting or refusing to perform any of the duties imposed pursuant 
to this chapter; or 

(3) transporting, accepting for transport, interring, or otherwise dispos- 
ing of a dead body or stillborn fetus without a permit or other authoriza- 
tion issued in accordance with the provisions of this chapter. 

(c) In addition to the other penalties herein prescribed, any employee or 
officer of the department who knowingly, recklessly or negligently discloses 
any information in violation of section 39-270, Idaho Code, shall be subject 
to immediate dismissal from employment. 

(d) In addition to any other sanction or penalty authorized by law, the 
registrar may hereby impose a fine which may not exceed two hundred fifty 
dollars ($250) for each violation wherein a physician, hospital administrator 
or his designee, or other birth attendants, or coroner/deputy, or funeral 
director/mortician fails to sign a birth, or death or stillbirth certificate 
within fifteen (15) days of the death or within fifteen (15) days of the birth. 
Notice of intent to impose such fine must be given by the registrar to the 
alleged violator. Each day that a violation continues following the giving of 
the notice of intent may constitute a violation and the registrar may impose 
a fine which may not exceed fifty dollars ($50.00) per day. In determining the 
amount of any fine to be imposed for a violation, the registrar shall consider 
the following factors: 

(1) the gravity of the violation or extent to which the provisions of the 
applicable statute or rule were violated; 

(2) any action taken by the alleged violator to correct the violation or 
assure that the violation will not reoccur; 

(3) any previous violation. 

History. 1983, ch. 7, § 35, p. 23; am. 1994, ch. 323, § 1, 

1949, ch. 72, § 26, p. 117; am. and redesig. p. 1027. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-273 was amended and redes- 

This section was formerly compiled as § 39- ignated as § 39-261 by § 22 of S.L. 1983, ch. 
266. 7. 

39-274. Evidentiary character of records and copies of records. 

— Any certificate filed in accordance with the provisions of this chapter and 
the regulations prescribed by the board, or any copy of such records or part 
thereof, duly certified by the state registrar, shall be prima facie evidence of 
the facts recited therein. 

History. 

1949, ch. 72, § 23, p. 117; am. and redesig. 
1983, ch. 7, § 36, p. 23. 



201 VITAL STATISTICS 39-277 

STATUTORY NOTES 

Compiler's Notes. 

This section was formerly compiled as § 39- 
263. 

JUDICIAL DECISIONS 

Admissibility of Death Certificate. therein. Corey v. Wilson, 93 Idaho 54, 454 P.2d 

As an exception to the hearsay rule, a 951 (1969). 

properly filed certificate of death, or a copy ,,., , . „ r> j *• i t p ai 

fi*,»~ A r ,.<»*;«<»i k, t fi, Q Q +ofo ™<t; c +t.qt. ic Cited in: Haman v. Prudential Ins. Co., 91 

thereof certified by the state registrar, is 

prima facie evidence of the facts stated Idaho 19 > 415 R2d 305 (1966) ' 

39-275. Applicability. — The provisions of this chapter also apply to all 
certificates of birth, death, marriage, divorce, stillbirth, and reports of 
induced abortion previously received by the vital statistics unit and in the 
custody of the state registrar. 

History. 

I.C., § 39-275, as added by 1983, ch. 7, 
§ 37, p. 23. 

39-276. Uniformity of interpretation. — This chapter shall be so 
construed as to effectuate its general purpose to make uniform the laws of 
those states which enact it. 

History. 

1949, ch. 72, § 31, p. 117; am. and redesig. 
1983, ch. 7, § 38, p. 23. 

STATUTORY NOTES 

Compiler's Notes. severable and if any provision of this act or 

This section was formerly compiled as § 39- the application of such provision to any per- 

271. son or circumstance is declared invalid for 

Section 39 of S.L. 1983, ch. 7 read: "The any reason, such declaration shall not affect 

provisions of this act are hereby declared to be the validity of remaining portions of this act." 

39-277. Autopsies for suspected Creutzfeldt-Jakob disease. — 

When an attending physician or hospital has reported to the department of 
health and welfare that Creutzfeldt-Jakob disease (CJD) or variant CJD is 
suspected in relation to a person's death, the state epidemiologist, as 
designated pursuant to department rule, shall cause to be performed an 
autopsy of the body, provided a definitive diagnosis has not been made prior 
to death and provided further that the person or persons having the highest 
authority under the provisions of section 54-1142, Idaho Code, do not refuse 
the performance of such autopsy. The state epidemiologist, in ordering an 
autopsy pursuant to this section, shall require the person or entity perform- 
ing the autopsy to report the findings of such autopsy to the department of 
health and welfare. 



39-278 HEALTH AND SAFETY 202 

History. 

I.C., § 39-277, as added by 2006, ch. 241, 
§ 1, p. 735. 

39-278. Procedure for delayed registration or amendment of 
vital record. — (1) Following exhaustion of any administrative procedures 
or remedies provided by this chapter or by department rule, if an applicant 
has been denied a request to amend a vital record as provided by section 
39-250(5), Idaho Code, or because the item for which an amendment is 
sought has already been once administratively denied, or if a delayed 
registration is rejected, including as provided in section 39-267, Idaho Code, 
the applicant may petition a court of competent jurisdiction of this state for 
an order establishing the facts necessary to establish or amend a vital record 
as provided in this section. 

(2) The petition must be verified and must allege at least: 

(a) If the petition is for a delayed registration of birth: 

(i) That the person for whom the delayed certificate is requested was 
born in this state; 

(ii) That the person's birth is not registered in another state or country; 
(iii) That a record for the person's birth cannot be found in the state's 
vital records; 

(iv) That despite diligent efforts the petitioner was unable to obtain the 
information and evidentiary documents required for the creation and 
registration of a delayed certificate of birth; 

(v) That the state registrar has issued a final rejection of the applica- 
tion for a delayed certificate of birth; and 
(vi) The following information: 

1. The original full name and sex of the registrant; 

2. The date of birth and place of birth, including the: 

(A) Facility; 

(B) City, town or location; 

(C) County; and 

3. The full maiden name of the mother; and 

4. The full name of the father, unless the registrant was born out of 
wedlock. 

(b) If the petition is for a delayed registration of death or stillbirth: 

(i) That the person for whom the delayed certificate is requested died in 
this state; 

(ii) That the person's death is not registered in another state or 
country; 

(iii) That a record for the person's death cannot be found in the state's 
vital records; 

(iv) That despite diligent efforts the petitioner was unable to obtain the 
information and evidentiary documents required for the creation and 
registration of a delayed certificate of death; 

(v) That the state registrar has issued a final rejection of the applica- 
tion for a delayed certificate of death; and 
(vi) The following information: 

1. The full name and sex of the deceased; 

2. The date and place of death, including the: 






203 VITAL STATISTICS 39-278 

(A) Facility; 

(B) City, town or location; 

(C) County; and 
3. For a stillbirth: 

(A) The full maiden name of the mother; and 

(B) The full name of the father, unless the mother was not married. 
(c) If the petition is for another amendment to a vital record, in a manner 
otherwise permitted by department rule: 

(i) The identity of the record registered with the state registrar and the 
item in the record the petitioner requests to be amended; 
(ii) The change requested and the purpose of the amendment; 
(iii) The rule under which the amendment is otherwise permitted; and 
(iv) That the state registrar has issued a final rejection of the applica- 
tion for the requested amendment and the reason for the rejection. 

(3) The petitioner must attach all evidentiary documents presented to the 
registrar and the written final letter of denial or rejection from the registrar. 

(4) The petitioner must provide a complete copy of the petition, together 
with notice of the date, time and place of the hearing, by mailing a copy 
thereof at least fourteen (14) days before the time set for the hearing, by 
certified, registered or ordinary first class mail, to the state registrar at the 
address given in the written final letter of denial or rejection. The state 
registrar or an authorized representative may appear and present evidence 
at the hearing. 

(5) If the court finds from the evidence presented that: 

(a) The person for whom a delayed certificate of birth is requested was 
born in this state, it shall make findings as to: 

(i) The original full name and sex of the registrant; 
(ii) The date of birth and place of birth, including the: 

1. Facility; 

2. City, town or location; 

3. County; and 

(iii) The full maiden name of the mother; and 

(iv) The full name of the father, unless the registrant was born out of 

wedlock. 

(b) The person for whom a delayed certificate of death is requested died 
in this state, it shall make findings as to: 

(i) The full name and sex of the deceased; and 
(ii) The date and place of death, including the: 

1. Facility; 

2. City, town or location; and 

3. County. 

(c) The person requesting any other amendment to a vital record in a 
manner otherwise permitted by department rule has established the facts 
necessary for the amendment and the amendment is otherwise appropri- 
ate, it shall make an order amending the item in the vital record as 
requested. 

(6) The order of the court shall include a description of the evidence 
presented and the date of the court's action. 

(7) The order of the court shall not alter the fees otherwise required by 
the registrar for the requested amendment, or the time frames otherwise 



39-300 HEALTH AND SAFETY 204 

provided for the registrar to administratively establish or make the amend- 
ment requested. 

History. 

I.C., § 39-278, as added by 2010, ch. 78, 
§ 3, p. 129. 

CHAPTER 3 
ALCOHOLISM AND INTOXICATION TREATMENT ACT 

SECTION. SECTION. 

39-300. Definitions. [Repealed.] 39-306. Acceptance for treatment — Rules. 

ol'onl' declaration of policy. 39 . 307 Voluntary treatment of alcoholics 
39-302. Definitions. J , , ,_. 

39-303. Interagency committee on substance and dru S addicts. 

abuse prevention and treat- 39-307A. Protective custody. 

ment. [Null and void.] 39-308. Records of alcoholics, intoxicated or 

Qo1n5 A n Regi0I l al a 4 visor y committees addicted persons. 

39-304. Comprehensive program for treat- or . on _ _ , ,. * . „ . . 

ment. 39-309. Payment for treatment — Financial 

39-305. Standards for public and private ability of patients. 

treatment facilities — En- 39-310. Criminal law limitations. 

forcement procedures — Pen- 39-311. Rules and regulations. 

alties. 39-312 — 39-316. [Repealed.] 

39-300. Definitions. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 300, as added by 1955, ch. 257, § 1, p. 586, 

This section, which comprised I.C., § 39- was repealed by S.L. 1971, ch. 2, § 1, p. 4. 

39-301. Declaration of policy. — It is the policy of this state that 
alcoholics, intoxicated persons or drug addicts may not be subjected to 
criminal prosecution or incarceration solely because of their consumption of 
alcoholic beverages or addiction to drugs but rather should be afforded 
treatment in order that they may lead normal lives as productive members 
of society 

The legislature hereby finds and declares that it is essential to the health 
and welfare of the people of this state that action be taken by state 
government to effectively and economically utilize federal and state funds 
for alcoholism and drug addiction research, and the prevention and for the 
treatment and rehabilitation of alcoholics or drug addicts. To achieve this, it 
is necessary that existing fragmented, uncoordinated and duplicative alco- 
holism and drug treatment programs be merged into a comprehensive and 
integrated system for the prevention, treatment and rehabilitation of 
alcoholics. 

The legislature continues to recognize the need for criminal sanctions for 
those who violate the provisions of the uniform controlled substances act. 

History. § 1, p. 376; am. 1976, ch. 98, § 1, p. 416; am. 

I.C., § 39-301, as added by 1975, ch. 149, 1987, ch. 289, § 1, p. 610. 



205 ALCOHOLISM AND INTOXICATION TREATMENT ACT 39-302 

STATUTORY NOTES 

Cross References. 1907, § 9, p. 182; am. R.C. § 1095; am. 1909, 

Uniform controlled substances act, § 37- § 1, P- 153; am. 1913, ch. 140, § 1, p. 495; 

2701 et sea reen - CL - § 1095 5 CS > § 1655 > ICA > § 38 " 

301; am. 1955, ch. 257, § 2, p. 586; am. 1965, 

Prior Laws. ch. 212, § 1, p. 486, was repealed by S.L. 

Former § 39-301, which comprised S.L. 1971, ch. 2, § 1, p. 4. 

JUDICIAL DECISIONS 

Application. a requirement to provide treatment for alco- 

This chapter does not affect offenses involv- holies convicted of substantive crimes. State v. 

ing the operation of a vehicle while intoxi- Hadley, 122 Idaho 728, 838 P.2d 331 (Ct. App. 

cated; therefore, it does not mandate that 1992) 
treatment for alcoholism be provided to a 

prison inmate. State v. Puga, 111 Idaho 874, Cited in: St. Joseph Reg'l Med. Ctr. v. Nez 

72 i? 2d ,. 398 (Ct i A pp ' I 98 ?!* « Perce County Comm'rs, 134 Idaho 486, 5 P.3d 

This chapter eliminates the status offense 46g (2000) 
of alcoholism and provides a mechanism for 
treatment. However, in no way does it impose 

39-302. Definitions. — As used in this chapter, the terms defined in 
this section shall have the following meanings, unless the context clearly 
indicates another meaning: 

(1) "Addiction" or "alcoholism" means a primary, chronic, neurobiological 
disease with genetic, psychosocial and environmental factors influencing its 
development and manifestations. It is characterized by behaviors that 
include one (1) or more of the following: impaired control over drug or 
alcohol use, compulsive use, continued use despite harm, and craving. 

(2) "Alcoholic" means a person who has the disease of alcoholism, which 
is characterized by behaviors that include one (1) or more of the following: 
impaired control over alcohol use, compulsive use, continued use despite 
harm, and craving. 

(3) "Approved private treatment facility" means a private agency meeting 
the standards prescribed in section 39-305(1), Idaho Code, and approved 
under the provisions of section 39-305(3), Idaho Code, and rules promul- 
gated by the board of health and welfare pursuant to this chapter. 

(4) "Approved public treatment facility" means a treatment agency oper- 
ating under the provisions of this chapter through a contract with the 
department of health and welfare pursuant to section 39-304(7), Idaho 
Code, and meeting the standards prescribed in section 39-305(1), Idaho 
Code, and approved pursuant to section 39-305(3), Idaho Code, and rules 
promulgated by the board of health and welfare pursuant to this chapter. 

(5) "Department" means the Idaho department of health and welfare. 

(6) "Director" means the director of the Idaho department of health and 
welfare. 

(7) "Drug addict" means a person who has the disease of addiction, which 
is characterized by behaviors that include one (1) or more of the following: 
impaired control over drug use, compulsive use, continued use despite harm, 
and craving. 

(8) "Incapacitated by alcohol or drugs" means that a person, as a result of 
the use of alcohol or drugs, is unconscious or has his judgment otherwise so 
impaired that he is incapable of realizing and making a rational decision 
with respect to his need for treatment. 



39-303 HEALTH AND SAFETY 206 

(9) "Incompetent person" means a person who has been adjudged incom- 
petent by an appropriate court within this state. 

(10) "Interagency committee" means the interagency committee on sub- 
stance abuse prevention and treatment as provided for in section 39-303, 
Idaho Code. 

(11) "Intoxicated person" means a person whose mental or physical 
functioning is substantially impaired as a result of the use of drugs or 
alcohol. 

(12) "Recovery support services" means those ancillary, nonclinical ser- 
vices needed for a client to maintain substance abuse or addiction recovery. 
These services may include transportation, childcare, drug testing, safe and 
sober housing and care management. 

(13) "Substance abuse" means the misuse or excessive use of alcohol or 
other drugs or substances. 

(14) "Treatment" means the broad range of emergency, outpatient, inten- 
sive outpatient, and inpatient services and care, including diagnostic 
evaluation, medical, psychiatric, psychological, and social service care, 
vocational rehabilitation and career counseling, which may be extended to 
alcoholics and intoxicated persons and/or drug addicts. 

History. 610; am. 2006, ch. 407, § 1, p. 1232; am. 2008, 

I.C., § 39-302, as added by S.L. 1975, ch. ch. 94, § 1, p. 259. 
149, § 1, p. 376; am. 1987, ch. 289, § 2, p. 

STATUTORY NOTES 

Prior Laws. remaining subsections accordingly; substi- 

Former § 39-302, which comprised S.L. tute( j « t his chapter" for "this act" in subsec- 

1907, § 20, p. 182; reen. R.C. & C.L., § 1096; tions (7) and (8) and inserted « or d » in 

C.S., § 1656; I.C.A., § 38-302; am. 1955, ch. subsection (9) 

257, § 3, p. 586; am. 1965, ch. 212, § 2, p. SU ™q a * u v *a i i/u * 

Aaa ZnJJL-^^A u„ o t 1Q71 „v « « 1 „ The 2008 amendment, by ch. 94, alphabet- 

486, was repealed by b.L. 1971, ch. 2, § 1, p. . «... , „ , , ■, -,-,■, 

lzed the denned terms and added present 

subsections (1) and (12); rewrote present sub- 
Amendments, sections (2) and (7); and in subsection (14), 
The 2006 amendment, by ch. 407, added substituted "intensive outpatient" for "inter- 
subsections (5) and (11) and renumbered the mediate." 

39-303. Interagency committee on substance abuse prevention and 
treatment. [Null and void.] 

Null and void, pursuant to S.L. 2006, ch. 407, § 6, effective July 1, 2011. 

History. 

I.C., § 39-303, as added by 2006, ch. 407, 
§ 3, p. 1232; am. 2007, ch. 69, § 2, p. 183, 

STATUTORY NOTES 

Cross References. 376; am. 1976, ch. 98, § 2, p. 416; am. 1987, 

Administrative director of the courts, § 1- cn . 289, § 3, p. 610; am. 1989, ch. 282, § 1, p. 

611. 



691, was repealed by S.L. 2006, ch. 407, § 2. 
Another former § 39-303, which comprised 
S.L. 1907, § 21, p. 182; reen. R.C. & C.L., 
§ 39-303, as added by 1975, ch. 149, § 1, p. § 1097; C.S., § 1657; I.C.A., § 38-303; am. 



Prior Laws. Another former § 39-303, which comprised 

Former § 39-303, which comprised I.C., S.L. 1907, § 21, p. 182; reen. R.C. & C.L., 



207 ALCOHOLISM AND INTOXICATION TREATMENT ACT 39-304 

1955, ch. 257, § 4, p. 586, was repealed by 
S.L. 1971, ch. 2, § 1, p. 4. 

39-303A. Regional advisory committees. — (1) Regional advisory 
committees that address substance abuse issues shall be established by the 
department of health and welfare. The regional advisory committees shall 
be composed of regional directors of the department or their designees, 
regional substance abuse program staff and representatives of other appro- 
priate public and private agencies. Members shall be appointed by the 
respective regional directors for terms determined by the regional director. 
The committees shall meet at least quarterly at the call of the chair, who 
shall also be appointed by the regional director. The committees shall 
provide for the coordination of, and exchange of information on, all pro- 
grams relating to alcoholism and drug addiction, and shall act as liaison 
among the departments engaged in activities affecting alcoholics and 
intoxicated persons. 

(2) The chairpersons of each regional advisory committee shall collec- 
tively meet at least annually and elect one (1) of its members to serve as the 
regional advisory committees' representative on the interagency committee. 
Each regional advisory committee shall provide to the regional advisory 
committees' representative, before each regular meeting of the interagency 
committee, a report addressing local substance abuse program needs and 
other information as it pertains to the treatment and prevention of alcohol- 
ism and other drug addiction or as required by the chairperson of the 
interagency committee. The regional advisory committees' representative 
shall be responsible for communicating information from these reports at 
each regular meeting of the interagency committee. 

History. 

I.C., § 39-303A, as added by 1989, ch. 282, 
§ 2, p. 691; am. 2006, ch. 407, § 4, p. 1232. 

STATUTORY NOTES 

Amendments. following "abuse program staff", inserted "re- 
The 2006 amendment, by ch. 407, added the spective", and substituted "directors" for "di- 
subsection (1) designation; in subsection (1), rector"; deleted the last sentence, which for- 
substituted "that address substance abuse merly read: "The regional advisory 
issues shall be established by the department committees shall provide to the commission 
of health and welfare" for "are established" in on alcohol-drug abuse information pertaining 
the first sentence, in the second sentence, to local substance abuse program needs and 
added "The regional advisory committees other information as it pertains to the treat- 
shall be" to the beginning, deleted "a member ment and prevention of alcoholism and other 
of the commission on alcohol drug abuse" drug addiction"; and added subsection (2). 

39-304. Comprehensive program for treatment. — The Idaho de- 
partment of health and welfare is hereby designated as the state substance 
abuse authority. 

(1) The department shall establish a comprehensive and coordinated 
program for the treatment of alcoholics, intoxicated persons and drug 
addicts. The interagency committee shall direct the department in the 
establishment and in the content of this program. 

(2) The program shall include: 



39-305 HEALTH AND SAFETY 208 

(a) Emergency detoxification treatment and medical treatment directly 
related thereto provided by a facility affiliated with or part of the medical 
service of a general hospital; 

(b) Inpatient treatment; 

(c) Intensive outpatient treatment; 

(d) Outpatient treatment; 

(e) Community detoxification provided by an approved facility; and 

(f) Recovery support services. 

(3) The department shall provide for adequate and appropriate treatment 
for persons admitted pursuant to section 39-307, Idaho Code. Treatment 
shall not be provided at a correctional institution except for inmates. 

(4) The department shall maintain, supervise, and control all facilities 
operated by it. The administrator of each such facility shall make an annual 
report of its activities to the director in the form and manner the director 
specifies. 

(5) All appropriate public and private resources shall be coordinated with 
and utilized in the program whenever possible. 

(6) The department shall prepare, publish and distribute annually a list 
of all approved public and private treatment facilities. 

(7) The department may contract for the use of any facility as an 
approved public treatment facility if the director considers this to be an 
effective and economical course to follow. 

(8) The program shall include an individualized treatment plan prepared 
and maintained for each client. 

History- 610; am. 1989, ch. 282, § 3, p. 691; am. 2006, 

I.C., § 39-304, as added by S.L. 1975, ch. ch. 407, § 5, p. 1232; am. 2007, ch. 69, § 3, p. 
149, § 1, p. 376; am. 1987, ch. 289, § 4, p. 183; am. 2008, ch. 94, § 2, p. 260. 

STATUTORY NOTES 

Prior Laws. The 2007 amendment, by ch. 69, substi- 

Former § 39-304 which comprised R.C., tuted "shall direct the department" for "shall 

§ 1097a, as added by 1909, § 2, p. 153; am. advisp thp denartment" in subsection (1) 

1913, ch. 140, § 1, subd. 1097a, p. 497; am. aavise tne department in suosection (1). 

1917, ch. Ill, p. 389; reen. C.L., § 1097a; The 2008 amendment, by ch. 94, rewrote 

C.S., § 1658; am. 1927, ch. 65, § 1, p. 81; paragraph (2)(c), which formerly read: "Inter- 

I.C.A., § 38-304; am 1955, ch. 257, § 5, p. mediate treatment"; in paragraph (2)(d), de- 

586, was repealed by S.L. 1971, ch. 2, § 1, p. leted « and foUow up „ preceding "treatment"; 

and added paragraph (2)(f). 
Amendments. 
The 2006 amendment, by ch. 407, added the Effective Dates. 

introductory paragraph, and added the sec- Section 4 of S.L. 2007, ch. 69 declared an 

ond sentence in subsection (1). emergency. Approved March 13, 2007. 

JUDICIAL DECISIONS 

Adequate Care. for chronic alcoholism. State v. Hadley, 122 

Adequate medical care has not been inter- Idaho 728, 838 P.2d 331 (Ct. App. 1992). 
preted to require rehabilitation or treatment 

39-305. Standards for public and private treatment facilities — 
Enforcement procedures — Penalties. — (1) The board of health and 
welfare shall establish standards for approved treatment facilities, which 



209 ALCOHOLISM AND INTOXICATION TREATMENT ACT 39-306 

shall be met in order for a treatment facility to be approved as a public or 
private treatment facility. The standards shall prescribe the health stan- 
dards to be met and standards of treatment to be afforded patients. 

(2) The department shall periodically inspect approved public and pri- 
vate treatment facilities. 

(3) The department shall maintain a list of approved public and private 
treatment facilities. 

(4) Each approved public and private treatment facility shall file with the 
department any data, statistics, records, and information the department 
reasonably requires. An approved public or private treatment facility that, 
without good cause, fails to furnish any data, statistics, records, or infor- 
mation as requested, or that files fraudulent returns thereof, shall be 
removed from the list of approved treatment facilities. 

(5) The board of health and welfare, after holding a hearing, may 
suspend, revoke, limit, or restrict an approval, or refuse to grant an 
approval, for failure to meet its standards. 

(6) A district court may restrain any violation of this act, review any 
denial, restriction, or revocation of approval, and grant other relief required 
to enforce its provisions. 

History. 

I.C., § 39-305, as added by S.L. 1975, ch. 
149, § 1, p. 376. 

STATUTORY NOTES 

Cross References. C.S., § 1659; I.C.A., § 38-305; am. 1955, ch. 

Idaho health planning act, § 39-4901 et 257, § 6, p. 586, was repealed by S.L. 1971, 
Seq * ch. 2, § 1, p. 4. 

Former § *39-305, which comprised R.S., C °fP iler, f Notes. 

§ 1153; am. 1903, p. 364, § 1; reen. R.C., The words tlus act in subsection (6) refer 

§ 1112; am. by repeal and substitution R.C., to S.L. 1975, ch. 149, § 1, which is compiled 

§ 1097b, as added by 1909, p. 153, § 2; am. as §§ 39-301, 39-302, 39-304 to 39-307, and 

1913, ch. 140, § 1, p. 497; reen. C.L., § 1097b; 39-308 to 39-311. 

39-306. Acceptance for treatment — Rules. — The board of health 
and welfare shall adopt rules for the acceptance of persons into the 
treatment program, considering available treatment resources and facili- 
ties, for the purpose of early and effective treatment of alcoholics, intoxi- 
cated persons and drug addicts. In establishing the rules the board shall be 
guided by the following standards: 

(1) If possible a patient shall be treated on a voluntary rather than an 
involuntary basis. 

(2) A patient shall be initially assigned or transferred to outpatient or 
intensive outpatient treatment, unless he is found to require inpatient 
treatment. 

(3) A person shall not be denied treatment solely because he has with- 
drawn from treatment against medical advice on a prior occasion or because 
he has relapsed after earlier treatment. 

(4) An individualized treatment plan shall be prepared and maintained 
on a current basis for each patient. 



39-307 HEALTH AND SAFETY 210 

(5) Provision shall be made for a continuum of coordinated treatment 
services, so that a person who leaves a facility or a form of treatment will 
have available and utilize other appropriate treatment. 

History. 149, § 1, p. 376; am. 1987, ch. 289, § 5, p. 

I.C., § 39-306, as added by S.L. 1975, ch. 610; am. 2008, ch. 94, § 3, p. 261. 

STATUTORY NOTES 

Prior Laws. Amendments. 

Former § 39-306, which comprised 1907, p. The 2008 amendment, by ch. 94, substi- 

182, § 22; reen. R.C., § 1098; am. 1909, p. tuted "intensive outpatient treatment" for "in- 
153, § 1; am. 1913, ch. 140, § 1, p. 497; reen. termediate treatment" in subsection (2). 
C.L., § 1098; C.S., § 1660; I.C.A., § 38-306; 
am. 1955, ch. 257, § 7, p. 586, was repealed 
by S.L. 1971, ch. 2, § 1, p. 4. 

39-307. Voluntary treatment of alcoholics and drug addicts. — 

(1) An alcoholic or a drug addict may apply for voluntary treatment directly 
to any approved public treatment facility. If the proposed patient is a minor 
or an incompetent person, he, a parent, legal guardian, or other legal 
representative shall make the application. 

(2) Subject to rules adopted by the board of health and welfare, the 
director or his designee may determine who shall be admitted to an 
approved public treatment facility. 

(3) If a patient receiving inpatient care leaves an approved public 
treatment facility, he shall be encouraged to consent to appropriate outpa- 
tient or intensive outpatient treatment, and the department shall assist in 
obtaining supportive services and residential facilities. 

(4) If a patient leaves an approved public treatment facility, upon the 
recommendation of departmental staff, the department shall make reason- 
able provisions for his transportation to another facility or to his home. If he 
has no home, he shall be assisted in obtaining shelter. If the patient is a 
minor or an incompetent person, the request for discharge from an inpatient 
facility shall be made by a parent, legal guardian, or other legal represen- 
tative or by the minor or incompetent if he was the original applicant. 

History. 149, § 1, p. 376; am. 1987, ch. 289, § 6, p. 

I.C, § 39-307, as added by S.L. 1975, ch. 610; am. 2008, ch. 94, § 4, p. 261. 

STATUTORY NOTES 

Prior Laws. Amendments. 

Former § 39-307, which comprised 1907, p. The 2008 amendment, by ch. 94, inserted 

182, § 23; am. R.C., § 1099; am. 1909, p. 1$3, «, - . ., . • ' tc jl linG . substituted 

§ 1; am. 1913, ch. 140, § 1, p. 498; compiled ^ m , tne sectlon catcWme substituted 

and reen. C.L., § 1099; C.S., § 1661; I.C.A., drug addict for an addict in the first sen- 

§ 38-307; am. 1947, ch. 167, § 1, p. 423; am. tence of subsection (1); and substituted "in- 

1955, ch. 257, § 8, p. 586, was repealed by tensive outpatient" for "intermediate" in sub- 

S.L. 1971, ch. 2, § 1, p. 4. section (3). 

39-307A. Protective custody. — (a) An intoxicated or drug addicted 
person may come voluntarily to an approved public treatment facility for 
emergency treatment. A person who appears to be intoxicated in a public 



211 ALCOHOLISM AND INTOXICATION TREATMENT ACT 39-307A 

place and to be in need of help, if he consents to the proffered help, may be 
assisted to his home, an approved public treatment facility, an approved 
private treatment facility, or other health facility by a law enforcement 
officer. 

(b) A person who appears to be incapacitated by alcohol or drugs shall be 
taken into protective custody by a law enforcement officer and forthwith 
brought to an approved treatment facility for emergency treatment. If no 
approved treatment facility is readily available he may be taken to a city or 
county jail where he may be held until he can be transported to an approved 
treatment facility, but in no event shall such confinement extend more than 
twenty-four (24) hours. A law enforcement officer, in detaining the person 
and in taking him to an approved treatment facility, is taking him into 
protective custody and shall make every reasonable effort to protect his 
health and safety. In taking the person into protective custody, the detaining 
officer may take reasonable steps to protect himself. A taking into protective 
custody under this section is not an arrest. No entry or other record shall be 
made to indicate that the person has been arrested or charged with a crime. 

(c) A person who comes voluntarily or is brought to an approved treat- 
ment facility shall be examined as soon as possible. He may then be 
admitted as a patient or referred to another health facility. The referring 
approved treatment facility shall arrange for his transportation. 

(d) A person who by examination is found to be incapacitated by alcohol 
or drugs at the time of his admission or to have become incapacitated at any 
time after his admission, may not be detained at the facility (1) once he is no 
longer incapacitated by alcohol or drugs or (2) if he remains incapacitated by 
alcohol or drugs for more than seventy-two (72) hours after admission as a 
patient. A person may consent to remain in the facility as long as the person 
in charge believes appropriate. 

(e) If a patient is admitted to an approved treatment facility, his family or 
next of kin shall be notified as promptly as possible. If an adult patient who 
is not incapacitated requests that there be no notification, his request shall 
be respected. 

(f) Law enforcement officers, personnel of the department, and personnel 
of an alcohol or drug treatment facility who act in compliance with this 
section are acting in the course of their official duty and are not criminally 
or civilly liable therefor. 

(g) If the person in charge of the approved treatment facility determines 
it is for the patient's benefit, the patient shall be encouraged to agree to 
further diagnosis and appropriate voluntary treatment. 

(h) That any person taken to a seventy-two (72) hour evaluation and 
treatment facility shall be informed immediately that he has the right to 
request and take a chemical test in order to ascertain whether he is an 
intoxicated or addicted person. If the person requests to take the test and 
the professional person in charge of the facility then determines that the 
person taken to the facility is not intoxicated or addicted, he shall immedi- 
ately release him. A record shall be maintained by the facility of the results 
of the test. 



39-308 HEALTH AND SAFETY 212 

History. 

I.C., § 39-307A, as added by S.L. 1976, ch. 
98, § 3, p. 416; am. 1987, ch. 289, § 7, p. 610. 

39-308. Records of alcoholics, intoxicated or addicted persons. — 

(1) The registration and other records of treatment facilities shall remain 
confidential, and are privileged to the patient. 

(2) Notwithstanding subsection (1) of this section, the director may make 
available information from patients' records for purposes of research into 
the causes and treatment of alcoholism or drug addiction. Information 
under this subsection shall not be published in a way that discloses patients' 
names or other identifying information. 

History. 149, § 1, p. 376; am. 1987, ch. 289, § 8, p. 

I.C., § 39-308, as added by S.L. 1975, ch. 610. 

STATUTORY NOTES 

Prior Laws. 18, § 1, p. 18; I.C. A., § 38-308; am. 1935, ch. 

Former § 39-308, which comprised 1907, p. 34, § 1, p. 58; am. 1945, ch. 53, § 1, p. 67; am. 

182, § 24; reen. R.C., § 1100; am. 1913, ch. 1955^ c h 257, § 9, p. 586, was repealed by 

140, § 2, p. 499; reen. C.L., § 1100; am. 1919, s.L. 1971, ch. 2, § 1, p. 4. 
ch. 10, § 1, p. 71; C.S., § 1662; am. 1929, ch. 

39-309. Payment for treatment — Financial ability of patients. — 

(1) If treatment is provided by an approved public treatment facility and 
the patient has not paid the charge therefor, the department is entitled to 
any income or payment received by the patient or to which he may be 
entitled for the services rendered, and to any payment from any public or 
private source available to the department because of the treatment 
provided to the patient. 

(2) A patient in an approved treatment facility, or the estate of the 
patient, or a person obligated to provide for the cost of treatment and having 
sufficient financial ability, is liable to the department for the cost of 
transportation, maintenance and treatment of the patient therein in accor- 
dance with rates established by the department. 

(3) The board of health and welfare shall adopt rules and regulations 
governing financial ability that take into consideration the income, savings 
and other personal and real property of the person required to pay, as well 
as any support being furnished by him to any person whom he may be 
required by law to support. 

History. 

I.C, § 39-309, as added by S.L. 1975,' ch. 
149, § 1, p. 376; am. 1976, ch. 98, § 4, p. 416. 

STATUTORY NOTES 

Prior Laws. ch. 122, § 1, p. 166; I.C.A., § 38-309, was 

Former § 39-309, which comprised 1927, repealed by S.L. 1971, ch. 2, § 1, p. 4. 

39-310. Criminal law limitations. — (1) With the exception of per- 



213 ALCOHOLISM AND INTOXICATION TREATMENT ACT 39-3 10 

sons below the statutory age for consuming alcoholic beverages and of 
persons affected by the provisions of subsection (3) herein, no person shall be 
incarcerated or prosecuted criminally or civilly for the violation of any law, 
ordinance, resolution or rule that includes drinking, being a common 
drunkard, or being found in an intoxicated or addicted condition as one of 
the elements of the offense giving rise to criminal or civil penalty or 
sanction. 

(2) No county, municipality, or other political subdivision may interpret 
or apply any law of general application to circumvent the provision of 
subsection (1) of this section. 

(3) Nothing in this chapter shall affect any law, ordinance, resolution, or 
rule against drunken driving, driving under the influence of alcohol or 
drugs, or other similar offense involving the operation of a vehicle, aircraft, 
boat, machinery, or other equipment, or regarding the sale, purchase, 
dispensing, possessing, or use of alcoholic beverages or drugs at stated times 
and places or by a particular class of persons, or regarding the carrying of a 
concealed weapon when intoxicated or under the influence of an intoxicating 
drink or drug, or regarding pedestrians who are under the influence of 
alcohol or drugs to a degree which renders them a hazard and who walk or 
are otherwise upon a highway except on a sidewalk, or regarding persons 
who are using or are under the influence of controlled substances or narcotic 
drugs and who are on public property, roadways or conveyances or on 
private property open to the public. 

(4) This chapter shall not limit or alter the terms or effect of section 
18-116, Idaho Code. 

(5) Nothing in this chapter shall affect the enforcement of any other 
provisions of the uniform controlled substances act. 

History. 149, § 1, p. 376; am. 1987, ch. 289, § 9, p. 

I.C., § 39-310, as added by S.L. 1975, ch. 610; am. 2002, ch. 189, § 1, p. 543. 

STATUTORY NOTES 

Cross References. 182, § 25; reen. R.C. & C.L., § 1101; C.S., 

Uniform controlled substances act, § 37- § 1663; I.C.A., § 38-310; am. 1955, ch. 257, 

2701 et seq. § 10, p. 586, was repealed by S.L. 1971, ch. 2, 

Prior Laws. § 1, p. 4. 
Former § 39-310, which comprised 1907, p. 

JUDICIAL DECISIONS 

Operation of Vehicle While Intoxicated. operating motor vehicles while he was under 

This chapter does not affect offenses involv- the influence of alcohol, a five-year sentence 

ing the operation of a vehicle while intoxi- f or driving while under the influence and a 

cated: it does not mandate that treatment for concurrent three-year sentence for driving 

alcoholism be provided to a prison inmate. without privileges were not invalid under this 

State v. Puga, 111 Idaho 874, 728 P.2d 398 (Ct. sec tion as punishment for alcoholism. State v. 

A PP- 1986) ; Garza, 115 Idaho 32, 764 P.2d 109 (Ct. App. 

Where the record showed that the court 1988). 
chose incarceration as a means of protecting 

society after numerous attempts had proved Cited in: Nowoj v. State, 115 Idaho 34, 764 

unsuccessful in deterring the defendant from P.2d 111 (Ct. App. 1988). 



39-311 HEALTH AND SAFETY 2 14 

39-311. Rules and regulations. — The board of health and welfare 
shall promulgate such rules and regulations as are deemed necessary to 
carry out the provisions of this act, subject to the provisions of chapter 52, 
title 67, Idaho Code. 

History. 

I.C., § 39-311, as added by S.L. 1975, ch. 
149, § 1, p. 376. 

STATUTORY NOTES 

Prior Laws. Effective Dates. 

Former § 39-311, which comprised 1907, p. Section 2 of S.L. 1975, ch. 149, as amended 

182, § 26; reen R.C., § 1102; am. 1913 ch. by section 5 of S.L. 1976, ch. 98 read: "This act 

4 ?66 § 4; 2 I.C P .A! § 0; 38!3n ; C am': £#$. ^ ^XS^Tlt " * aCC ° rdanC<S 
J 11 p. 4 586, was repealed by S.L. 1971, ch. 2, •* ^Mjy -JJ ^ ^ ^ 

P " 307, 39-308, 39-309, and 39-311 on July 1, 

Compiler's Notes. 1976. 

The words "this act" in subsection (6) refer "(2) §§ 39-301, 39-306, 39-307A, and 39- 

to S.L. 1975, ch. 149, § 1, which is compiled 310 on January 15, 1977." 
as §§ 39-301, 39-302, 39-304 to 39-307, and 
39-308 to 39-311. 

39-312 — 39-314. Disinfection of clothing and bedding — Exclusion 
of exposed persons from schools or public gathering 
— Hospital for infectious diseases. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. C.S., §§ 1665 to 1667; I.C.A., §§ 38-312 to 

These sections, which comprised 1907, p. 38-314; am. 1935, ch. 34, § 2, p. 58; am. 1955, 

182, §§ 27 to 30; reen. R.C. & C.L., §§ 1103, c h. 257, §§ 12, 13, p. 586, were repealed by 

1105; reen. R.C, § 1104; am. 1913, ch. 140, s L 1971 ch 2 § 1 p 4 
§ 2, subd. 1104, p. 501; reen. C.L., § 1104; 

39-315. Cremation and burial of bodies. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 140, § 2, subd. 1106, p. 501; reen. C.L., 

This section, which comprised S.L. 1907, p. § 1106; C.S., § 1668; I.C.A., § 38-315, was 
182, § 31; am. R.C, § 1106; am. 1913, ch. repealed by S.L. 1955, ch. 257, § 14, p. 586. 

39-316. Quarantine of cities and counties. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. I.C.A., § 38-316; am. 1955, ch. 257, § 15, p. 

This section, which comprised 1907, p. 182, 586, was repealed by S.L. 1971, ch. 2, § 1, p. 
§ 32; reen. R.C. & C.L., § 1107; C.S., § 1669; 4. 



215 



PUBLIC HEALTH DISTRICTS 



39-401 



CHAPTER 4 
PUBLIC HEALTH DISTRICTS 



SECTION. 

39-401. Legislative intent. 

39-402 — 39-407. [Repealed.] 

39-408. Establishment of districts. 

39-409. District health departments — Es- 
tablishment — Services. 

39-410. District board of health — Establish- 
ment. 

39-411. Composition of district board — 
Qualifications of members — 
Appointment and removal — 
Terms — Trustee selected for 
board of trustees of district 
boards of health. 

39-412. Meetings of the district board — 
Compensation of members. 

39-413. District health director — Appoint- 
ment — Powers and duties. 

39-414. Powers and duties of district board. 

39-414A. Audit of health district finances. 

39-415. Quarantine. 

39-416. Rules adopted by district board — 
Procedure. 

39-417. Hearings by district board — Oaths 
— Witnesses — Subpoenas. 

39-418. Judicial review of district board's de- 
termination — Exclusive pro- 
cedure. 



SECTION. 

39-419. Violation of public health laws — 
Misdemeanor — Civil liability 
for expense. 

39-420. Civil actions by district board — En- 
forcement of act — Abatement 
of nuisances. 

39-421. Special counsel of district board. 

39-422. Public health district fund — Estab- 
lishment — Divisions — Fis- 
cal officer — Expenditures. 

39-423. Budget committee of public health 
district. 

39-424. Cost of maintenance of district — 
Apportionment to member 
counties. 

39-425. General state aid to districts — Pro- 
cedures. 

39-426. Public employees retirement system. 

39-427. Reporting of children suspected of 
having severe auditory and/or 
visual impairment. [Re- 
pealed.] 



39-401. Legislative intent. — The various health districts, as provided 
for in this chapter, are not a single department of state government unto 
themselves, nor are they a part of any of the twenty (20) departments of 
state government authorized by section 20, article IV, Idaho constitution, or 
of the departments prescribed in section 67-2402, Idaho Code. 

It is legislative intent that health districts operate and be recognized not 
as state agencies or departments, but as governmental entities whose 
creation has been authorized by the state, much in the manner as other 
single purpose districts. Pursuant to this intent, and because health 
districts are not state departments or agencies, health districts are exempt 
from the required participation in the services of the purchasing agent or 
employee liability coverage, as rendered by the department of administra- 
tion. However, nothing shall prohibit the health districts from entering into 
contractural [contractual] arrangements with the department of adminis- 
tration, or any other department of state government or an elected consti- 
tutional officer, for these or any other services. 

It is legislative intent to affirm the provisions of section 39-413, Idaho 
Code, requiring compliance with the state merit system, and to affirm the 
participation of the health districts in the public employee retirement 
system, pursuant to section 39-426, Idaho Code, chapter 13, title 59, Idaho 
Code, and chapter 53, title 67, Idaho Code. 

It is also legislative intent that the matters of location of deposit of health 
district funds, or the instruments or documents of payment from those funds 
shall be construed as no more than items of convenience for the conduct of 
business, and in no way reflect upon the nature or status of the health 
districts as entities of government. 



39-402 HEALTH AND SAFETY 216 

This section merely affirms that health districts created under this 
chapter are not state agencies, and in no way changes the character of those 
agencies as they existed prior to this act. 

History. 

I.C., § 39-401, as added by 1976, ch. 179, 
§ 1, p. 644; am. 1986, ch. 63, § 1, p. 180. 

STATUTORY NOTES 

Prior Laws. second paragraph was inserted by the corn- 
Former § 39-401, which comprised S.L. piler to supply the intended term. 

1947, ch. 106, § 1, p. 215, was repealed by The words "this act" refer to S.L. 1976, ch. 

S.L. 1970, ch. 90, § 20. 179, which is compiled as §§ 39-401, 39-413, 

Compiler's Notes. 39-414, 39-416, 39-421, 39-422, and 39-424. 
The bracketed word "contractual" in the 

JUDICIAL DECISIONS 

Cited in: Sunnyside Indus. & Prof 1 Park, 
LLC v. Eastern Idaho Pub. Health Dist., 147 
Idaho 668, 214 P3d 654 (Ct. App. 2009). 

39-402 — 39-407. Public health districts — Establishment and 
regulation. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. ch. 106, §§ 2 to 7, p. 215, were repealed by 

These sections, which comprised S.L. 1947, S.L. 1970, ch. 90, § 20. 

39-408. Establishment of districts. — There is hereby established 
within the state of Idaho seven (7) public health districts more particularly 
denned as follows: 

District No. 1 shall include the counties of Boundary, Bonner, Kootenai, 
Benewah and Shoshone; 

District No. 2 shall include the counties of Latah, Clearwater, Nez Perce, 
Lewis and Idaho; 

District No. 3 shall include the counties of Adams, Washington, Payette, 
Gem, Canyon and Owyhee; 

District No. 4 shall include the counties of Valley, Boise, Ada and Elmore; 

District No. 5 shall include the counties of Camas, Blaine, Gooding, 
Lincoln, Jerome, Minidoka, Twin Falls and Cassia; 

District No. 6 shall include the counties of Power, Oneida, Bannock, 
Franklin, Caribou, Bear Lake, Bingham and Butte; 

District No. 7 shall include the counties of Lemhi, Custer, Clark, 
Jefferson, Bonneville, Teton, Madison and Fremont. 

History. 

1970, ch. 90, § 1, p. 218. 



217 PUBLIC HEALTH DISTRICTS 39-411 

STATUTORY NOTES 

Effective Dates. the act should be in full force and effect July 

Section 22 of S.L. 1970, ch. 90 provided that 1, 1971. 

39-409. District health departments — Establishment — Ser- 
vices. — There is hereby created and established in each of the above 
described public health districts a district health department, hereinafter 
referred to as the district health department. The district health depart- 
ment shall have as its head the district board of health. 

The district health department will provide the basic health services of 
public health education, physical health, environmental health, and public 
health administration, but this listing shall not be construed to restrict the 
service programs of the district health department solely to these categories. 
Each district shall have a doctor of medicine licensed in Idaho as a staff 
member or as a regular consultant. 

History. 

1970, ch. 90, § 2, p. 218; am. 1973, ch. 29, 
§ 1, p. 56; am. 1986, ch. 63, § 2, p. 180. 

39-410. District board of health — Establishment. — There is 
hereby created and established in each of the public health districts a 
district board of health, hereinafter referred to as the district board, which 
shall be vested with the authority, control, and supervision of the district 
health department, and with such powers as required to perform the duties 
as are set forth in this act and shall be responsible for supervision of all 
district health programs. 

History. 



isiory. 

1970, ch. 90, § 3, p. 218; am. 1973, ch. 29, 
§ 2, p. 56. 



STATUTORY NOTES 

Compiler's Notes. 179, which is compiled as §§ 39-401, 39-413, 

The words "this act" refer to S.L. 1976, ch. 39-414, 39-416, 39-421, 39-422, and 39-424. 

39-411. Composition of district board — Qualifications of mem- 
bers — Appointment and removal — Terms — Trustee selected for 
board of trustees of district boards of health. — For those districts 
comprised of less than eight (8) counties, the district board of health shall 
consist of seven (7) members to be appointed by the boards of county 
commissioners within each district acting jointly, and each board of county 
commissioners may appoint a board member. For those districts comprised 
of eight (8) counties, the district board of health shall consist of not less than 
eight (8) members nor more than nine (9) members and each board of county 
commissioners may appoint a board member. Each member of the district 
board of health shall be a citizen of the United States, a resident of the state 
of Idaho and the public health district for one (1) year immediately last past, 
and a qualified elector. One (1) member of the district board, if available to 
serve, shall be a physician licensed by the Idaho state board of medicine and 



39-412 HEALTH AND SAFETY 218 

no more than one (1) member shall be appointed from any professional or 
special interest group. All members shall be chosen with due regard to their 
knowledge and interest in public health and in promoting the health of the 
citizens of the state and the public health district. Representation shall be 
assured from rural as well as urban population groups. All appointments to 
the district board shall be confirmed by a majority vote of all the county 
commissioners of all the counties located within the public health district. 
Any member of the district board may be removed by majority vote of all the 
county commissioners of all the counties located within the district. The 
members of the district board, each year, shall select a chairman, a 
vice-chairman and a trustee. The trustee shall represent the district board 
as a member of the board of trustees of the Idaho district boards of health. 
The board of trustees of the Idaho district boards of health shall have 
authority to allocate appropriations from the legislature to the health 
districts. The board of trustees shall develop and administer a formula for 
the allocation of legislative appropriations. 

The members of the district board of health shall be appointed for the 
purpose of organization as follows: One (1) member to be appointed for a 
term of one (1) year, one (1) for two (2) years, one (1) for three (3) years, two 
(2) for four (4) years and two (2) for five (5) years. Each succeeding vacancy 
shall be filled by the boards of county commissioners within the district 
acting jointly and with confirmation as herein described for a term of five (5) 
years, subject to reappointment; and vacancies on the board for an unex- 
pired term shall be filled for the balance of the unexpired term. Notwith- 
standing any provision of this section as to term of appointment, if a board 
member is an appointee for a board of county commissioners, and if that 
board member is an elected county commissioner and leaves office prior to 
the expiration of the term on the district board of health, the board of county 
commissioners may declare the position vacant and may appoint another 
currently elected county commissioner to fill the unexpired portion of the 
term of that board member. 

History. p. 180; am. 1992, ch. 122, § 1, p. 399; am. 

1970, ch. 90, § 4, p. 218; am. 1972, ch. 159, 1999, ch. 61, § 1, p. 151; am. 2007, ch. 163, 

§ 1, p. 352; am. 1973, ch. 29, § 3, p. 56; am. § i p . 489; am> 2 010, ch. 287, § 1, p. 768. 
1984, ch. 38, § 1, p. 64; am. 1986, ch. 63, § 3, 

STATUTORY NOTES 

Amendments. Effective Dates. 

The 2007 amendment, by ch. 163, in the Section 3 of S.L. 2010, ch. 286 provided that 

second sentence in the first paragraph, in- the act should take effect on and after April 
serted "not less than" and "nor more than nine 11, 2010. 
(9) members." 

The 2010 amendment, by ch. 287, added the 
last sentence in the last paragraph. 

39-412. Meetings of the district board — Compensation of mem- 
bers. — The district board shall hold such meetings as may be necessary for 
the orderly conduct of its business and such meetings may be called upon 
seventy-two (72) hours' notice by the chairman or a majority of the members. 



219 PUBLIC HEALTH DISTRICTS 39-414 

Four (4) members shall be necessary to constitute a quorum and the action 
of the majority of members present shall be the action of the board. The 
members of the board shall be compensated as provided by section 59-509(i), 
Idaho Code. 

History. 1984, ch. 40, § 1, p. 66; am. 1989, ch. 68, § 1, 

1970, ch. 90, § 5, p. 218; am. 1973, ch. 29, p. 110; am. 2007, ch. 91, § 1, p. 270. 
§ 4, p. 56; am. 1980, ch. 247, § 33, p. 582; am. 

STATUTORY NOTES 

Amendments. 

The 2007 amendment, by ch. 91, updated 
the section reference at the end of the section. 

39-413. District health director — Appointment — Powers and 
duties. — A district health director shall be appointed by the district board. 
The director shall have and exercise the following powers and duties in 
addition to all other powers and duties inherent in the position or delegated 
to him or imposed upon him by law or rule, regulation, or ordinance: 

(1) To be secretary and administrative officer of the district board of 
health; 

(2) To prescribe such rules and regulations, consistent with the require- 
ments of this chapter, as may be necessary for the government of the 
district, the conduct and duties of the district employees, the orderly and 
efficient handling of business and the custody, use and preservation of the 
records, papers, books and property belonging to the public health district; 

(3) To administer oaths for all purposes required in the discharge of his 
duties; 

(4) With the approval of the district board to: 

(a) Prescribe the positions and the qualifications of all personnel under 
the district health director on a nonpartisan merit basis in accordance 
with the objective standards approved by the district board. 

(b) Fix the rate of pay and appoint, promote, demote, and separate such 
employees and to perform such other personnel actions as are needed 
from time to time in conformance with the requirements of chapter 53, 
title 67, Idaho Code. 

(c) Create such units and sections as are or may be necessary for the 
proper and efficient functioning of the duties herein imposed. 

History. 1974, ch. 23, § 70, p. 633; am. 1976, ch. 179, 

1970, ch. 90, § 6, p. 218; am. 1972, ch. 159, § 2, p. 644; am. 1982, ch. 133, § 1, p. 380; am. 
§ 2, p. 352; am. 1973, ch. 29, § 5, p. 56; am. 1986, ch. 63, § 4, p. 180. 

39-414. Powers and duties of district board. — The district board of 
health shall have and may exercise the following powers and duties: 

(1) To administer and enforce all state and district health laws, regula- 
tions, and standards. 

(2) To do all things required for the preservation and protection of the 
public health and preventive health, and such other things delegated by the 
director of the state department of health and welfare or the director of the 



39-414 HEALTH AND SAFETY 220 

department of environmental quality and this shall be authority for the 
director(s) to so delegate. 

(3) To determine the location of its main office and to determine the 
location, if any, of branch offices. 

(4) To enter into contracts with any other governmental or public agency 
whereby the district board agrees to render services to or for such agency in 
exchange for a charge reasonably calculated to cover the cost of rendering 
such service. This authority is to be limited to services voluntarily rendered 
and voluntarily received and shall not apply to services required by statute, 
rule, and regulations, or standards promulgated pursuant to this act or 
chapter 1, title 39, Idaho Code. 

(5) All moneys or payment received or collected by gift, grant, devise, or 
any other way shall be deposited to the respective division or subaccount of 
the public health district in the public health district fund authorized by 
section 39-422, Idaho Code. 

(6) To establish a fiscal control policy required by the state controller. 

(7) To cooperate with the state board of health and welfare, the depart- 
ment of health and welfare, the board of environmental quality and the 
department of environmental quality. 

(8) To enter into contracts with other governmental agencies, and this act 
hereby authorizes such other agencies to enter into contracts with the 
health district, as may be deemed necessary to fulfill the duties imposed 
upon the district in providing for the health of the citizens within the 
district. 

(9) To purchase, exchange or sell real property and construct, rent, or 
lease such buildings as may be required for the accomplishment of the 
duties imposed upon the district and to further obtain such other personal 
property as may be necessary to its functions. 

(10) To accept, receive and utilize any gifts, grants, or funds and personal 
and real property that may be donated to it for the fulfillment of the 
purposes outlined in this act. 

(11) To establish a charge whereby the board agrees to render services to 
or for entities other than governmental or public agencies for an amount 
reasonably calculated to cover the cost of rendering such service. 

(12) To enter into a lease of real or personal property as lessor or lessee, 
or other transaction with the Idaho health facilities authority for a term not 
to exceed ninety-nine (99) years upon a determination by the district board 
that the real or personal property to be leased is necessary for the purposes 
of the district, and to pledge nontax revenues of the district to secure the 
district's obligations under such leases. For the purposes of this chapter, a 
public health district is not a subdivision of the state and shall be considered 
an independent body corporate and politic pursuant to section 1, article 
VIII, of the constitution of the state of Idaho, and is not authorized hereby 
to levy taxes nor to obligate the state of Idaho concerning such financing. 

(13) To administer and certify solid waste disposal site operations, 
closure, and post closure procedures established by statute or regulation in 
accordance with provisions of chapter 74, title 39, Idaho Code, in a manner 
equivalent to the site certification process set forth in section 39-7408, Idaho 
Code. 



221 PUBLIC HEALTH DISTRICTS 39-414A 

(14) To select a board member to serve as trustee on the board of trustees 
of the Idaho district boards of health. 

History. § 5, p. 180; am. 1988, ch. 213, § 1, p. 403; am. 

1970, ch. 90, § 14, p. 218; am. 1973, ch. 29, 1992, ch. 331, § 3, p. 972; am. 1993, ch. 139, 

§ 6, p. 56; am. 1974, ch. 23, § 71, p. 633; § 23, p. 342; am. 1994, ch. 180, § 72, p. 420; 

1976, ch. 51, § 9, p. 152; am. 1976, ch. 179, am. 1999, ch. 61, § 2, p. 151; am. 2000, ch. 

§ 3, p. 644; am. 1980, ch. 118, § 1, p. 257; am. 132, § 33, p. 309; am. 2008, ch. 231, § 1, p. 

1982, ch. 133, § 2, p. 380; am. 1986, ch. 63, 702. 

STATUTORY NOTES 

Cross References. The letter "s" enclosed in parentheses so 

Department of environmental quality, appeared in the law as enacted. 

§ 39-104 et seq. 

Department of health and welfare, § 56- Effective Dates. 

10 S 1 ^w 1 ' -v*j «. u r on 1AAA Section 4 of S.L. 1992, ch. 331 declared an 

Health facilities authority, § 39-1444. _ . _ ' ' ; ., 

Idaho health planning act, § 39-4901 et emergency. It became law without the gover- 

seq. nor's signature April 15, 1992. 

State controller, § 67-1001 et seq. Section 25 of S.L. 1993, ch, 139 declared an 

Amendments. emergency. Approved March 25, 1993. 

The 2008 amendment, by ch. 231, added the Section 241 of S.L. 1994, ch. 180 provided 

last sentence in subsection (12). that such act should become effective on and 

Compiler's Notes. after the first Monday in Januar * 1995 t Jan " 

The words "this act" refer to S.L. 1976, ch. uai 7 2 > 1995 ^ if the amendment to the Con- 

179, which is compiled as §§ 39-401, 39-413, stitution of Idaho changing the name of the 

39-414, 39-416, 39-421, 39-422, and 39-424. state auditor to state controller [1994 S.J.R. 

Section 24 of S.L. 1993, ch. 139 read: "If any No. 109, p. 1493] was adopted at the general 

section, subsection, sentence, clause or phrase election held on November 8, 1994. Since such 

of this act is for any reason held to be uncon- amendment was adopted, the amendment to 

stitutional, such decision shall not affect the this section by § 72 of S.L. 1994, ch. 180 

validity of the remaining portions of this act." became effective January 2, 1995. 

JUDICIAL DECISIONS 

Mandatory Duty. Cited in: Lindstrom v. District Bd. of 

The language under subdivision (1) of this Health, 109 Idaho 956, 712 P.2d 657 (Ct. App. 
section, requiring a public health district to 1985). 
"administer . . . health laws, regulations and 
standards," creates a mandatory duty. Mead 
v. Arnell, 117 Idaho 660, 791 P.2d 410 (1990). 

39-414A. Audit of health district finances. — It shall be the duty of 
each district board of health to cause to be made a full and complete audit 
of all the financial transactions of the health district no less frequently than 
every two (2) years. Such audit shall be made by or under the direction of the 
legislative council, in accordance with generally accepted auditing stan- 
dards and procedures. The district board of health shall include all neces- 
sary expenses for such audit in its budget. 

History. § 6, p. 134; am. 1982, ch. 134, § 1, p. 383; am. 

I.C., § 39-414A, as added by 1977, ch. 71, 1993, ch. 327, § 20, p. 1186. 



39-415 HEALTH AND SAFETY 222 

STATUTORY NOTES 

Cross References. 

Legislative council, § 67-427 et seq. 

Effective Dates. 

Section 2 of S.L. 1982, ch. 134 declared an 
emergency. Approved March 22, 1982. 

39-415. Quarantine. — The district board shall have the same author- 
ity, responsibility, powers, and duties in relation to the right of quarantine 
within the public health district as does the state. 

History. 

1970, ch. 90, § 7, p. 218; am. 1973, ch. 29, 
§ 7, p. 56. 

39-416. Rules adopted by district board — Procedure. — (1) The 

district board by the affirmative vote of a majority of its members may 
adopt, amend or rescind rules and standards as it deems necessary to carry 
out the purposes and provisions of this act. 

(2) Every rule or standard adopted, amended, or rescinded by the district 
board shall be done in a manner conforming to the provisions of chapter 52, 
title 67, Idaho Code. 

(3) At the same time that proposed rules are transmitted to the director 
of legislative services, they shall be submitted for review and comment to 
the board of county commissioners of each county within the public health 
district's jurisdiction. If the rules relate to environmental protection or 
programs administered by the department of environmental quality, the 
rules shall also be submitted for review and comment to the state board of 
environmental quality. All other rules that do not relate to environmental 
protection or programs administered by the department of environmental 
quality shall be submitted for review and comment to the state board of 
health and welfare. The state board of health and welfare, or the state board 
of environmental quality, shall, within seventy-five (75) days of receipt of a 
district board's proposed rules, disapprove of the adoption of the rules if, on 
the advice of the attorney general, such rules would be in conflict with state 
laws or rules. The state board of health and welfare, or the state board of 
environmental quality, shall immediately advise the district board as to the 
reason for the disapproval. 

(4) This section does not apply to measures adopted for the internal 
operation of the district board or for federal programs where the regulations 
are established by the federal government but shall apply to all measures 
affecting the public at large or any identifiable segment thereof. 

(5) Public health districts shall have all proposed rules regarding envi- 
ronmental protection or programs administered by the department of 
environmental quality submitted for review and comment to the state board 
of environmental quality and such rules must be approved by adoption of a 
concurrent resolution by both houses of the legislature or such rules shall 
expire at the conclusion of a regular session of the legislature. It is the intent 
of the legislature that standards and rules relating to subsurface sewage 
systems, wastewater treatment, sewage systems and water quality be 
consistent statewide. 



223 PUBLIC HEALTH DISTRICTS 39-417 

History. § 1, p. 58; am. 1993, ch. 296, § 1, p. 1094; am. 

1970, ch. 90, § 11, p. 218; am. 1973, ch. 29, 1999, ch. 61, § 3, p. 151; am. 2010, ch. 24, § 1, 

§ 8, p. 56; am. 1974, ch. 23, § 72, p. 633; am. p . 43; am . 2010, ch. 310, § 1, p. 830. 
1976, ch. 179, § 4, p. 644; am. 1986, ch. 17, 

STATUTORY NOTES 

Cross References. section (3), inserted "or the state board of 

Attorney general, § 67-1401 et seq. environmental quality" after "board of health 

Board of environmental quality, § 39-107. - W olfa™»" 

Board of health and welfare, § 56-1005. 1 1m n ' a ♦ u v, qia aa a 

Director of legislative services, § 67-701. The 2010 amendment, by ch. 310, added 

subsection (5). 
Amendments. 

This section was amended by two 2010 acts Compiler's Notes. 

which appear to be compatible and have been The words "this act" refer to S.L. 1976, ch. 

compiled together. 179, which is compiled as §§ 39-401, 39-413, 

The 2010 amendment, by ch. 23, in the first 39-414, 39-416, 39-421, 39-422, and 39-424. 
sentence of subsection (3), deleted "and stan- 
dards" after "proposed rules", deleted "the Effective Dates. 

state board of health and welfare, and to" Section 2 of S.L. 1993, ch. 296 declared an 

after "review and comment to"; added the emergency. Approved March 31, 1993. 

second and third sentences in subsection (3); Section 3 of S.L. 2010, ch. 310 declared an 

in the next-to-last and last sentences in sub- emergency. Approved April 11, 2010. 

JUDICIAL DECISIONS 

Cited in: Lindstrom v. District Bd. of 1985); Mead v. Arnell, 117 Idaho 660, 791 P.2d 
Health, 109 Idaho 956, 712 P.2d 657 (Ct. App. 410 (1990). 

39-417. Hearings by district board — Oaths — Witnesses — 
Subpoenas. — (1) Any person, association, public or private agency, 
corporation, or the district director alleging a violation of this act, the rules 
promulgated thereunder, or any matter within the jurisdiction of the district 
board, or any alleged violator thereof, may, pursuant to the provisions of 
chapter 52, title 67, Idaho Code, and the rules promulgated thereunder by 
the state board of health and welfare or the board of environmental quality, 
seek a hearing before the district board and/or such other relief or remedy 
as is provided or available. 

(2) The hearings herein provided may be conducted by the district board 
or by its designated agent and in either case the district board or its agent 
shall have the same powers and authority set out in subsection (3) of section 
39-107, Idaho Code. The provisions of this section shall not apply to the 
internal administrative affairs of the district board or department nor to its 
subordinate sections and units. 

History. § 9, p. 56; am. 1974, ch. 23, § 73, p. 633; am. 

1970, ch. 90, § 9, p. 218; am. 1973, ch. 29, 2000, ch. 132, § 34, p. 309. 

STATUTORY NOTES 

Compiler's Notes. 422, and 39-423. Probably, the reference 

The term "this act" in subsection (1) refers should be to "this chapter", being chapter 4, 

to S.L. 1973, ch. 29, which is codified as title 39, Idaho Code. 
§§ 39-409 to 39-414, 39-415 to 39-420, 39- 



39-418 HEALTH AND SAFETY 224 

JUDICIAL DECISIONS 

Jurisdiction of Court. disputed factual issue, and neither party 
Where no final determination of the district challenged any of the court's findings, the 
board of health was involved, the board did district court had jurisdiction under this see- 
not raise before the district court the question t ion to engage in the review authorized by 
of whether the action for declaratory relief § 67-5201 et seq. Lindstrom v. District Bd. of 
was timely filed, the parties essentially Health, 109 Idaho 956, 712 P.2d 657 (Ct.App. 
agreed upon the facts, evidence was adduced 1985). 
in the district court for determination of one 

39-418. Judicial review of district board's determination — Ex- 
clusive procedure. — (1) Judicial review of a final determination of the 
district board may be secured by any person adversely affected thereby by 
filing a petition for review as prescribed by chapter 52, title 67, Idaho Code, 
in the district court of the county wherein he lives within thirty (30) days 
after receipt of notice of the district board's final determination. The petition 
for review shall be served upon the district health director and the director 
of the department of health and welfare of the state of Idaho. The director 
may appear in any such hearing as a matter of right. Such service shall be 
jurisdictional and the provisions of this section shall be the exclusive 
procedure for appeal or review. 

(2) If no appeal or review is sought within the time prescribed in (1) 
above, the final determination of the district board shall be conclusive as to 
factual matters decided therein and not subject to collateral attack in any 
proceeding to enforce its provisions. 

History. 

1970, ch. 90, § 10, p. 218; am. 1973, ch. 29, 
§ 10, p. 56; am. 1974, ch. 23, § 74, p. 633. 

STATUTORY NOTES 

Cross References. 

Director of department of health and safety, 
§ 56-1003. 

JUDICIAL DECISIONS 

Analysis 

Exclusive procedure. 
Jurisdictional requirements. 

Exclusive Procedure. Jurisdictional Requirements. 

The remedies of § 67-5201 et seq. are not Where applicable, requirements of this sec- 
available after a final determination of the .. _ - „ «__i_ ««„„ „„j «^ r ^« n t T^+;f;«« 
board unless the provisions of this section' are * 10n for timel y film ^ ^d service of a petition 
strictly complied with; this section dictates f <> r review are jurisdictional. Lindstrom v. 
the exclusive procedure for appeal or review District Bd. of Health, 109 Idaho 956, 712 
of a final board decision unless the procedure p 2d 657 (Ct. App. 1985). 
fails to provide an adequate remedy. 

Lindstrom v. District Bd. of Health, 109 Idaho Cited in: District Bd. of Health v. Chancey, 

956, 712 P.2d 657 (Ct. App. 1985). 94 Idaho 944, 500 P.2d 845 (1972). 

39-419. Violation of public health laws — Misdemeanor — Civil 
liability for expense. — (1) It shall be unlawful for any person, associa- 



225 PUBLIC HEALTH DISTRICTS 39-419 

tion, or corporation, and the officers thereof to willfully violate, disobey, or 
disregard the provisions of the public health laws or the terms of any lawful 
notice, order, standard, rule, regulation, or ordinance issued pursuant 
thereto [.](; or) 

(2) Any person, association, or corporation, or the officers thereof, violat- 
ing any of the provisions of this chapter shall be deemed guilty of a 
misdemeanor, and upon conviction thereof shall be punished by a fine not 
exceeding three hundred dollars ($300), or by imprisonment in the county 
jail for a term not exceeding six (6) months, or by both such fine and 
imprisonment. In addition to fine and imprisonment, any person, associa- 
tion or corporation, or the officers thereof, found to be in violation of this act 
or the rules promulgated thereunder shall be liable for any expense incurred 
by the district board of health in enforcing this act, or in removing or 
terminating any nuisance, source of filth, cause of sickness, or health 
hazard. Conviction under the penalty provisions of this act or any other 
health law or rules promulgated thereunder shall not relieve any person 
from any civil action in damages that may exist for any injury resulting from 
any violation of the public health laws or rules promulgated by the district 
board of health. 

(3) A violator of any law or rule within the jurisdiction of the district shall 
be liable in an amount not in excess of the limits prescribed in section 
39-108, Idaho Code. The district board may seek recovery by commencing an 
action in the district court of the county wherein the violation occurred. 
Amounts recovered shall be deposited as required by the provisions of 
section 39-414(5), Idaho Code. 

History. 1992, ch. 122, § 2, p. 399; am. 2000, ch. 132, 

1970, ch. 90, § 8, p. 218; am. 1973, ch. 29, § 35, p. 309. 
§ 11, p. 56; am. 1986, ch. 63, § 6, p. 180; am. 

STATUTORY NOTES 

Compiler's Notes. language from the 1970 enactment of this 

The bracketed insertion at the end of sub- section, 

section (1) was added by the compiler to The words "this act" refer to S.L. 1976, ch. 

supply missing punctuation. The parentheses 179, which is compiled as §§ 39-401, 39-413, 

at the end of subsection (1) indicate surplus 39-414, 39-416, 39-421, 39-422, and 39-424. 

JUDICIAL DECISIONS 

Special Counsel's Expenses. section alone, then the amendment to § 39- 

Through the 1992 amendment to § 39-421, 421 would have been superfluous because the 

it appears that the legislature intended that costs f special counsel would already have 

the expenses of special counsel should be been covered by this section. Idaho Dep't of 

recovered from persons violating this chapter. Health & Welfare v. Southfork Lumber Co., 

If the legislature intended to include attorney 123 Idaho 146, 845 P.2d 564 (1993). 
fees in the "any expense" provision of this 

Decisions Under Prior Law 

Extraordinary Expenses. public health district's regulations at trial or 

The term "extraordinary expense" was not on appeal. Lindstrom v. District Bd. of Health, 

intended to encompass attorney fees incurred 109 Idaho 956, 712 P.2d 657 (Ct. App. 1985) 

in defending an attack on the validity of the (decided prior to 1986 amendment). 



39-420 HEALTH AND SAFETY 226 

Where homeowners were contesting the va- District Bd. of Health, 109 Idaho 956, 712 

lidity of a regulation, but were not in violation R2d 657 (Ct. App. 1985) (decided prior to 1986 

of such regulation, the district board of health amendment), 
was not entitled to attorney fees. Lindstrom v. 

39-420. Civil actions by district board — Enforcement of act — 
Abatement of nuisances. — The district board in its name shall com- 
mence and maintain all proper and necessary civil actions and proceedings 
to enforce the provisions of this act and the preservation and protection of 
the public and is specifically directed to abate nuisances when necessary for 
the purpose of elimination of sources of filth, infestations, infections, 
communicable diseases, health hazards, and conditions not compatible with 
the preservation and protection of the public health. Enforcement of a final 
determination of the district board shall be commenced by filing an action in 
the district court, by any party to the board action, the board, or the director, 
and the introduction of the final determination. 

History. 

1970, ch. 90, § 12, p. 218; am. 1973, ch. 29, 
§ 12, p. 56. 

STATUTORY NOTES 

Compiler's Notes. 179, which is compiled as §§ 39-401, 39-413, 

The words "this act" refer to S.L. 1976, ch. 39-414, 39-416, 39-421, 39-422, and 39-424. 

39-421. Special counsel of district board. — The district board is 
hereby authorized to engage special counsel to defend it and the members in 
all action and proceedings brought against it or them with respect to their 
official duties hereunder. In addition, such special counsel may bring any 
civil action requested by the district board. The special counsel may request 
the prosecuting attorney of any county within the district for appointment 
as special prosecutor to assist in prosecuting any alleged violations of any of 
the provisions of this chapter which occurred within such county. Upon 
receipt of such request, the prosecutor of such county may forthwith 
designate the district's special counsel as special prosecutor to assist in 
prosecuting the alleged offender, and such special counsel shall have all the 
powers of a prosecuting attorney while acting as special prosecuting 
attorney Compensation of such special counsel for acting as special prose- 
cutor shall be paid by the district and subject to recovery as provided in 
section 39-419, Idaho Code. 

History. 

1970, ch. 90, § 13, p. 218; am. 1976, ch. 179, 
§ 5, p. 644; am. 1992, ch. 122, § 3, p. 399. 

STATUTORY NOTES 

Effective Dates. 

Section 4 of S.L. 1992, ch. 122 declared an 
emergency. Approved April 1, 1992. 



227 PUBLIC HEALTH DISTRICTS 39-423 

JUDICIAL DECISIONS 

Costs. 419 alone, then the amendment to this section 

Through the 1992 amendment to this sec- would have been superfluous because the 

tion, it appears that the legislature intended costs of special counsel would already have 

that the expenses of special counsel should be been covered by § 39-419. Idaho Dep't of 

recovered from persons violating this chapter. Health & Welfare v. Southfork Lumber Co., 

If the legislature intended to include attorney 123 Idaho 146, 845 P.2d 564 (1993). 
fees in the "any expense" provision of § 39- 

39-422. Public health district fund — Establishment — Divisions 
— Fiscal officer — Expenditures. — (1) There is hereby authorized and 
established in the state treasury a special fund to be known as the public 
health district fund for which the state treasurer shall be custodian. Within 
the public health district fund there shall be seven (7) divisions, one (1) for 
each of the seven (7) public health districts. Each division within the fund 
will be under the exclusive control of its respective district board of health 
and no moneys shall be withdrawn from such division of the fund unless 
authorized by the district board of health or its authorized agent. 

(2) The procedure for the deposit and expenditure of moneys from the 
public health district fund will be in accordance with procedures established 
between all district boards and the state controller. All income and receipts 
received by the districts shall be deposited in the public health district fund. 

(3) Claims against the divisions of the [public] health district fund are not 
claims against the state of Idaho. Claims against an individual health 
district are limited to that district's division moneys. 

History. § 6, p. 644; am. 1982, ch. 133, § 3, p. 380; am. 

1970, ch. 90, § 15, p. 218; am. 1973, ch. 29, 1994, ch. 180, § 73, p. 420; am. 1999, ch. 61, 

§ 13, p. 56; am. 1974, ch. 23, § 75, p. 633; am. § 4 p 151 
1976, ch. 51, § 10, p. 152; am. 1976, ch. 179, 

STATUTORY NOTES 

Cross References. after the first Monday in January, 1995 [Jan- 
State controller, § 67-1001 et seq. uary 2, 1995] if the amendment to the Con- 
Compiler's Notes. stitution of Idaho changing the name of the 
The bracketed insertion in subsection (3) state auditor to state controller [1994 S.J.R. 
was added by the compiler to supply the No. 109, p. 1493] was adopted at the general 
correct name of the referenced fund. election held on November 8, 1994. Since such 
Effective Dates. amendment was adopted, the amendment to 
Section 241 of S.L. 1994, ch. 180 provided this section by § 73 of S.L. 1994, ch. 180 
that such act should become effective on and became effective January 2, 1995. 

39-423. Budget committee of public health district. — The chair- 
men of the boards of county commissioners located within the public health 
district are hereby constituted as the budget committee of the public health 
district. 

The district board will submit to the budget committee by the first 
Monday in June of each year the preliminary budget for the public health 
district and the estimated cost to each county, as determined by the 
provisions of section 39-424, Idaho Code. 

On or before the first Monday in July, there will be held at a time and 
place determined by the budget committee a budget committee meeting and 



39-424 HEALTH AND SAFETY 228 

public hearing upon the proposed budget of the district. Notice of the budget 
committee meeting and public hearing shall be posted at least ten (10) full 
days prior to the date of said meeting in at least one (1) conspicuous place 
in each public health district to be determined by the district board of 
health. A copy of such notice shall also be published in the official newspaper 
or a generally circulated newspaper of each county of such public health 
district, in one (1) issue thereof, during such ten (10) day period. The place, 
hour and day of such hearing shall be specified in said notice, as well as the 
place where such budget may be examined prior to such hearing. A 
summary of such proposed budget shall be published with and as a part of 
the publication of such notice of hearing in substantially the form required 
by section 31-1604, Idaho Code. 

On or before the first Monday in July a budget for the public health 
district shall be agreed upon and approved by a majority of the budget 
committee. Such determination shall be binding upon all counties within 
the district and the district itself. 

History. § 1, p. 1134; am. 1977, ch. 77, § 1, p. 157; am. 

1970, ch. 90, § 16, p. 218; am. 1971, ch. 27, 1984, ch. 39, § 1, p. 65; am. 1986, ch. 63, § 7, 

§ 1, p. 71; am. 1973, ch. 29, § 14, p. 56; am. p . igO; am. 1999, ch. 61, § 5, p. 151. 
1974, ch. 23, § 76, p. 633; am. 1974, ch. 58, 

STATUTORY NOTES 

Effective Dates. 

Section 2 of S.L. 1977, ch. 77 declared an 
emergency. Approved March 17, 1977. 

JUDICIAL DECISIONS 

Constitutionality. Legislation creating public health districts 

Authority of budget committee of public is not invalid for failure to give proper voice to 

health district under this section does not taxpayers to vote on budget; taxpayers are 

violate Idaho Const. Art. XVIII, § 6 by ex- able to ex press themselves in public hearings 

r^WnLrf t ^KM ™ *nd through election of legislators and county 
missioners to levy taxes beyond their own . . 6 n . , ,, 6 T , J r „ ,,, 

county; the passing of the budget is not a levy commissioners. District B± of Health v. 

of the tax. District Bd. of Health v. Chancey, Chancey, 94 Idaho 944, 500 P.2d 845 (1972). 
94 Idaho 944, 500 P.2d 845 (1972). 

39-424. Cost of maintenance of district — Apportionment to 
member counties. — The manner of apportioning the contributions of the 
counties as part of the budget of the health district, created pursuant to 
section 39-423, Idaho Code, shall be as follows: 

(1) Seventy percent (70%) of the amount to be contributed by the counties 
shall be apportioned among the various counties within the health district 
on the basis of population. The proportion of the total population of each 
county as compared to the total population of the health district shall be the 
proportion by which such county shall share in the contribution of county 
funds for the maintenance of the health district, pursuant to this subsection. 
The population will be determined by the last general census when 
applicable. When a general census number is not applicable, population 
shall be estimated for each county by the state department of commerce and 



229 PUBLIC HEALTH DISTRICTS 39-425 

such estimated population number shall be certified to each health district 
by not later than April 1. 

(2) Thirty percent (30%) of the amount to be contributed by the counties 
shall be apportioned among the counties within the district on the basis of 
taxable market value for assessment purposes. The proportion of the total 
taxable market value for assessment purposes of each county as compared 
to the total taxable market value for assessment purposes of the health 
district shall be the proportion by which such county shall share in the 
contribution of funds for the maintenance of the health district, pursuant to 
this subsection. Total taxable market value for assessment purposes shall 
mean the total taxable market value for assessment purposes as computed 
by the county assessor for the preceding full calendar year. Taxable market 
value for each county shall be certified to the health districts by the state tax 
commission for the preceding year. 

History- § 8, p. 644; am. 1986, ch. 63, § 8, p. 180; am. 

I.C., § 39-424, as added by 1976, ch. 179, 1999, ch. 61, § 6, p. 151. 

STATUTORY NOTES 

Cross References. 1970, ch. 90, § 17, p. 218, was repealed by 

Department of commerce, § 67-4701 et seq. S.L. 1976, ch. 179, § 7. 
State tax commission, § 63-101. 

Prior Laws. 
Former § 39-424, which comprised S.L. 

JUDICIAL DECISIONS 

Decisions Under Prior Law 
Analysis 

Constitutionality. 

County contribution of funds. 

Constitutionality. tricts, and therefore the duty is ministerial 

There is no conflict between Idaho Const., and subject to a writ of mandate. District Bd. 

Art II, § 1 and Idaho Const., Art XVIII and f Health v. Chancey, 94 Idaho 944, 500 P.2d 

the legislation creating public health districts 345 Q972) 

since under the legislation the levying and t XTU . - , . 

collecting of taxes is performed at aid by the ™ ere coum 7 commissioners refused to 

county level of government properly acting in P^orai ministerial duty to contribute its 

its executive capacity, and the counties' taxing share °* fanda to public health district as 

function is not intruded upon. District Bd. of Te ? m ™ d by this section which would dimin- 

Health v. Chancey, 94 Idaho 944, 500 P.2d 845 lsh ablllt y ° f V u }> hc health dlstnct to furmsh 
Q972) services and reduce its matching funds from 

state, writ of mandate was properly issued to 

County Contribution of Funds. require commissioners to appropriate and pay 

No discretion exists in a board of county required sum since the public health district 

commissioners to avoid the duty imposed by had no speedy or adequate remedy in the 

this section on the various counties to partic- ordinary course of law. District Bd. of Health 

ipate in the financing of public health dis- v. Chancey, 94 Idaho 944, 500 P.2d 845 (1972). 

39-425. General state aid to districts — Procedures. — (1) Every 
year, the districts shall submit a request to the legislature for money to be 
used to match funds contributed by the counties pursuant to section 31-862, 
Idaho Code, for the maintenance and operation of district health depart- 



39-425 HEALTH AND SAFETY 230 

ments. The matching amount to be included in the request shall be a 
minimum of sixty-seven percent (67%) of the amounts pledged by each 
county, as adopted as part of the budget for the health districts during the 
budget formulations, as provided for in section 39-423, Idaho Code. If the 
determined amount of participation by a county would exceed the amount 
which could be raised applying the maximum levy prescribed in section 
31-862, Idaho Code, that county's participation shall be reduced to the 
maximum amount which can be raised thereby. 

(2) The foregoing provision shall not limit the legislature from authoriz- 
ing or granting additional funds for selected projects in excess of the 
percentage of participation of general aid granted all health districts. 

(3) General state aid to the various health districts shall be made 
available from state appropriations, and shall be distributed in the following 
manner: 

(a) The amount appropriated to the health districts shall be divided 
based upon the formula developed and administered by the board of 
trustees of the Idaho district boards of health. 

(b) One-half (1/2) of the amount appropriated shall be remitted to the 
public health trust fund on or before July 15; and 

(c) The remaining one-half (1/2) of the amount appropriated shall be 
remitted to the public health trust fund on or before January 15. 

(4) The liability of the state of Idaho to the public health districts and the 
public health district fund and its divisions is limited to: 

(a) The funds actually authorized and granted to the various public 
health districts as provided in subsection (1) of this section; and 

(b) The funds actually authorized or granted to the various public health 
districts as provided for in subsection (2) of this section; and 

(c) The funds due the various health districts in payment of legally 
authorized contracts and agreements entered into between the depart- 
ments of the state of Idaho and the various public health districts. 

(5) If revenues to the state treasury are insufficient to fully meet 
appropriations, and reductions in spending authority have been ordered 
pursuant to law, the amount of moneys to match revenues contributed by 
the counties, pursuant to section 39-423, Idaho Code, which has been 
appropriated pursuant to this section, shall be reduced by the same 
percentage rate as other general account appropriations. 

History. 1990, ch. 32, § 1, p. 47; am. 1999, ch. 61, § 7, 

I.C., § 39-425, as added by 1976, ch. 295, p. 151. 
§ 2, p. 1021; am. 1986, ch. 64, § 1, p. 185; am. 

STATUTORY NOTES 

Cross References. so amended (S.L. 1970, ch. 90, § 18, p. 218; 

Board of trustees of district boards of am. 1973, ch. 29, § 15, p. 56; am. 1974, ch. 23, 

health, § 39-411. § 77, p. 633; am. 1974, ch. 206, § 1, p. 1535; 

am. 1976, ch. 51, § 11, p. 152; am. 1976, ch. 

Compiler's Notes. 179, § 9, p. 644) and § 2 of ch. 295 created a 

Section 39-425 was amended twice in 1976 new § 39-425. Since Chapter 295 was the 

by§ 9 of ch. 179 and § 11 of ch. 51. However, latest expression of the Legislature it was 

S.L. 1976, ch. 295, § 1 repealed § 39-425 as compiled. 



231 AQUIFER PROTECTION DISTRICTS 39-501 

Effective Dates. 

Section 2 of S.L. 1990, ch. 32 declared an 
emergency. Approved March 7, 1990. 

39-426. Public employees retirement system. — All public health 
districts shall budget sufficient funds to allow for participation in the Idaho 
public employees retirement system as created by chapter 13, title 59, Idaho 
Code. 

History. 

1970, ch. 90, § 19, p. 218. 

STATUTORY NOTES 

Compiler's Notes. visions of the act are declared to be sever- 

Section 21 of S.L. 1970, ch. 90 read: "If any able." 
provisions of this act or the application 

thereof to any person or circumstance shall be Effective Dates. 

held invalid, such invalidity shall not affect Section 22 of S.L. 1970, ch. 90 provided that 

the balance of the provisions of this act, or the the act should be in full force and effect on 

application thereof, and to this end, the pro- and after July 1, 1971. 

39-427. Reporting of children suspected of having severe auditory 
and/or visual impairment. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. am. 1974, ch. 23, § 78, p. 633, was repealed 

This section, which comprised I.C., § 39- by S.L. 1986, ch. 86, § 1. 
427, as added by 1972, ch. 286, § 1, p. 722; 

CHAPTER 5 
AQUIFER PROTECTION DISTRICTS 

SECTION. SECTION. 

39-501. Purpose. 39-505. Governance — Powers and duties. 

39-502. Governing board. 39-506. Powers not granted. 

39-503. Aquifer protection district autho- 39-507. Policy and budget advisory commit- 

rized. tee. 

39-504. Petitions — Elections — Modification 39-508. Aquifer protection district funds — 

— Dissolution — Authority. Fees — Budget. 

39-501. Purpose. — The protection of ground water quality is essential 
for life, health and furthering matters of commerce. Multiple public agencies 
have regulatory jurisdiction over various aspects of everyday human activ- 
ity that can and do pose risks to vital underground water supplies. 
Enforcement of current rules and regulations, implementation of educa- 
tional programs, and inspection of potential sources of pollution require 
funding beyond the budgets of agencies charged with these responsibilities. 
The coordination of work by public agencies to assist in the prevention of 
degradation of valuable ground water can be a cost-effective alternative to 
after the fact remediation of a degraded resource. Certain ground water 
quality problems cannot be remedied, only prevented. The purposes of 
establishing an aquifer protection district include protection of the state's 



39-502 HEALTH AND SAFETY 232 

economy, maintaining a water supply that does not require extensive 
treatment prior to human consumption or commercial use, avoiding the 
economic costs of remedial action, and protecting the well-being of commu- 
nities that depend upon aquifers for essential human needs. 

History. 

I.C., § 39-501, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. 39-509. (1931, ch. 205, § 9, p. 392; I.C.A., 

Former §§ 39-501 to 39-513 were repealed § 38-409; am. 1974, ch. 23, § 87, p. 633). 
byJ.L. 1993, ch. 40, § 1, effective July 1, 39 . 51() (1931> ch 2Q ^ § 1Q p 392; j CA> 

39-501. (1931, ch. 205, § 1, p. 392; I.C.A., § 38-410; am. 1974, ch. 23, § 88, p. 633). 
§ 38-401; am. 1939, ch. 198, § 1, p. 375; am. 39-511. (1931, ch. 205, § 11, p. 392; I.C.A., 

1945, ch. 107, § 1, p. 159; am. 1974, ch. 23, § 38-411; am. 1945, ch. 107, § 4, p. 159; am. 

39-502. (1931, ch. 205, § 2, p. 392; I.C.A., 1974 ' ch ' 23 ' § 89 ' p - 633)> 

§ 38-402; am. 1939, ch. 198, § 2, p. 375; am. 39-512. (1931, ch. 205, § 12, p. 392; I.C.A., 

1974, ch. 23, § 80, p. 633). § 38-412; am. 1939, ch. 198, § 6, p. 375; am. 

39-503. (1931, ch. 205, § 3, p. 392; I.C.A., 1974, ch. 23, § 90, p. 633). 

§ 38-403; am. 1939, ch. 198, § 3, p. 375; am. 39-513. (1931, ch. 205, § 13, p. 392; I.C.A., 

1945, ch. 107, § 2, p. 159; am. 1974, ch. 23, § 38-413; am. 1974, ch. 23, § 91, p. 633). 

§ ?Q'r&/ 3 nQQi n\, on^ s 4 n qqq. t r a Former § 39-514, which comprised S.L. 

i fsfol; 1 931 19& c 2 h° 5 i9 § 8 4 | %*X?£. W31, ch. 205 « 14 p .392; LCA 8 38-414, 

1945, ch. 107, § 3, p. 159; am. 1974, ch. 23, wa « re P eal e. d J* 8J* 1974 ch. 23, § 1. 

§ 82 p 633) Former §§ 39-515 to 39-517, were repealed 

39-505. (1931, ch. 205, § 5, p. 392; I.C.A, by S.L. 1993, ch. 40, § 1, effective July 1, 

§ 38-405; am. 1974, ch. 23, § 83, p. 633). 1993: 

39-506. (1931, ch. 205, § 6, p. 392; I.C.A., 39-515. (1931, ch. 205, § 15, p. 392; I.C.A., 

§ 38-406; am. 1974, ch. 23, § 84, p. 633). § 38-415; am. 1974, ch. 23, § 92, p. 633). 

39-507. (1931, ch. 205, § 7, p. 392; I.C.A., 39-516. (1931, ch. 205, § 16, p. 392; I.C.A., 

§ 38-407; am. 1974, ch. 23, § 85, p. 633). § 38-416; am. 1974, ch. 23, § 93, p. 633). 

39-508. (1931, ch. 205, § 8, p. 392; I.C.A., 39-517. (I.C.A., § 38-417, as added by 1945, 

§ 38-408; am. 1939, ch. 198, § 5, p. 375; am. ch. 107, § 5, p. 159; am. 1974, ch. 23, § 94, p. 

1974, ch. 23, § 86, p. 633). 633; am. 1976, ch. 51, § 12, p. 152). 

39-502. Governing board. — For purposes of this chapter, the term 
"governing board" means the board of county commissioners of a county 
creating, or participating in, an aquifer protection district or multicounty 
aquifer protection district. 

History. 

I.C., § 39-502, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-502 was repealed. See Prior 
Laws, § 39-501. 

39-503. Aquifer protection district authorized. — (1) In counties 
where a state designated sensitive resource aquifer has been declared as 
prescribed by rules of the department of environmental quality, and such 
designation was made prior to the enactment of this act, the board of county 
commissioners of any such county may, upon petition, hold an election for 



233 AQUIFER PROTECTION DISTRICTS 39-504 

establishment of, or participation in, an aquifer protection district as 
authorized by this chapter. 

(2) Amulticounty aquifer protection district may be established by a joint 
powers agreement as authorized by chapter 23, title 67, Idaho Code, 
provided all participating counties have held elections and voted in favor of 
establishment of, or participation in, an aquifer protection district. Every 
reference to a county in this chapter may be applicable to the multiple 
counties that participate in a multicounty aquifer protection district. 

(3) An aquifer protection district is a political subdivision of the state of 
Idaho subordinate to the county or counties in which it is formed. The 
governing board of an aquifer protection district is authorized to provide 
coordination and funding for aquifer protection activities carried out by 
county government, other political subdivisions, state agencies, and private 
individuals or interests. The boundaries of an aquifer protection district 
shall conform as nearly as practicable to boundaries of the subject aquifer, 
the aquifer's recharge areas, and areas that may be dependent upon the 
aquifer as a source of water. 

History. 

I.C., § 39-503, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. subsection (1) refers to the enactment of S.L. 

Former § 39-503 was repealed. See Prior 2006, ch. 305, which was effective July 1, 
Laws, § 39-501. 2006. 

Compiler's Notes. 

The phrase "the enactment of this act" in 

39-504. Petitions — Elections — Modification — Dissolution — 
Authority. — (1) The establishment of, or participation in, an aquifer 
protection district may be initiated by the filing of a petition signed by not 
fewer than fifty (50) qualified electors of any county in which an eligible 
aquifer is located and who reside within the boundaries of the proposed 
aquifer protection district. The petition shall be filed with the county clerk 
of the county in which the signers of the petition are resident. The petition 
shall designate the proposed boundaries of the aquifer protection district. 

(2) Upon the filing of the petition, the county clerk shall promptly 
examine the petition and certify whether the required number of qualified 
petitioners have signed the petition. If the number of petition signers is 
sufficient, the county clerk shall transmit the certified petition to the board 
of county commissioners. 

(3) Upon receipt of a duly certified petition the board of county commis- 
sioners shall give notice of an election to be held, which election shall be held 
at the same time as the primary or general election, in such proposed 
district for the purpose of determining whether or not the proposed district 
shall be established or whether or not the county shall participate in a 
district. Such notice shall include the date and hours of the election, the 
polling places, the general purposes of the proposed district, a description of 
lands to be included in the proposed district, and a statement that a map of 



39-505 HEALTH AND SAFETY 234 

the proposed district is available in the office of the board of county 
commissioners. The notice shall be published once each week for three (3) 
consecutive weeks prior to such election in a newspaper of general circula- 
tion within the county. 

(4) The election shall be held and conducted consistent with the provi- 
sions of chapter 14, title 34, Idaho Code. The board of county commissioners 
shall appoint three (3) judges of election, one (1) of whom shall act as clerk 
for the election. At such election the electors shall vote for or against the 
establishment of, or participation in, the district. 

(5) The judges of election shall certify the returns of the election to the 
board of county commissioners. If a majority of the votes cast at said election 
are in favor of the establishment of, or participation in, the district, the 
board of county commissioners shall declare the district established and 
give it a name by which, in all proceedings, it shall thereafter be known. 

(6) Procedures for boundary modification or dissolution of a district 
created pursuant to this section shall be in substantial compliance with the 
provisions for petition and election provided in this section. 

(7) In the event a board of county commissioners declares a district 
established pursuant to the procedures prescribed by this section, the 
district shall be recognized as a legally established political subdivision of 
the state of Idaho. Unless otherwise limited by law, districts are authorized 
to work with and across the boundaries of all political subdivisions of the 
state of Idaho that are wholly or partially located within the external 
boundaries of the established aquifer protection district. Providing protec- 
tion of a state-designated sensitive resource aquifer is a governmental 
function. 

History. 

I.C., § 39-504, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-504 was repealed, See Prior 
Laws, § 39-501. 

39-505. Governance — Powers and duties. — In addition to powers 
and duties otherwise set forth in this chapter, governing boards shall have 
the following powers and duties: 

(1) To contract with public agencies and private individuals or entities to 
carry out district responsibilities and accomplish purposes of the district. 

(2) To apply for and receive grants to carry out aquifer protection district 
purposes. 

(3) To sue and be sued, and be a party to suits, actions and proceedings. 

(4) Except as otherwise provided in this chapter, to enter into contracts 
and agreements, cooperative and otherwise, affecting the affairs of the 
district, including contracts with the United States of America, the state of 
Idaho and any of its agencies or instrumentalities, public or private 
corporations, municipalities and other governmental subdivisions, and to 



235 AQUIFER PROTECTION DISTRICTS 39-507 

cooperate with any one (1) or more of these entities to achieve the purposes 
of the district. 

(5) To borrow money, provided however, that borrowing shall be limited to 
the Idaho water resource board revolving development fund pursuant to 
section 42-1756, Idaho Code. 

(6) To have the management, control and supervision of all business and 
affairs of the district. 

(7) To hire and retain agents, consultants and professional advisers 
concerning district matters. 

(8) To fix, and from time to time to increase or decrease, aquifer protection 
fees or charges for services or facilities furnished by the district, for the 
payment of any current charges or indebtedness of the district. 

(9) To adopt and amend resolutions not in conflict with the constitution 
and laws of the state for carrying on the business, objectives and affairs of 
the board and of the district. 

(10) To have and exercise all rights and powers necessary or incidental to 
or implied from the specific powers granted herein. Such specific powers 
shall not be considered as a limitation upon any power necessary or 
appropriate to carry out the purposes and intent of this chapter. 

History. 

I.C., § 39-505, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-505 was repealed. See Prior 
Laws, § 39-501. 

39-506. Powers not granted. — An aquifer protection district shall 
have no independent regulatory powers and no power to levy taxes. Such 
restriction shall not otherwise limit the police powers of the board of county 
commissioners. 

History. 

I.C., § 39-506, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-506 was repealed. See Prior 
Laws, § 39-501. 

39-507. Policy and budget advisory committee. — Subsequent to 
formation of an aquifer protection district, and as it regards the aquifer 
protection district, the governing board shall appoint a policy and budget 
advisory committee comprised of not less than nine (9) nor more than eleven 
(11) members. The policy and budget advisory committee shall be comprised 
of residents of the aquifer protection district boundaries with the following 
characteristics: 



39-508 HEALTH AND SAFETY 236 

(1) A representative of a municipal domestic water provider; 

(2) A representative of a water district; 

(3) A representative of an irrigation district; 

(4) A representative of a private water system; 

(5) A representative of a well recognized business organization; 

(6) A representative of a well recognized environmental organization; 

(7) A representative of the agricultural community; 

(8) A hydrologist or engineer; and 

(9) A citizen consumer. 

The responsibilities of the policy and budget advisory committee shall 
include making recommendations to the governing board for work program 
elements, proposing methods of cooperation among public agencies with 
regulatory jurisdiction concerning aspects of aquifer protection, developing 
an aquifer protection budget recommendation to forward to the governing 
board and carrying out such other aquifer protection activities as the 
governing board, resident and committee member interest, and appropri- 
ated budget allow. In addition to the budget hearing required by section 
39-508, Idaho Code, the budget and policy advisory committee shall conduct 
at least one (1) public hearing during each fiscal year to solicit public 
comment regarding aquifer protection needs. Notice of such hearing shall, 
at a minimum, comply with the standards for legislative hearings as 
provided by law. Any vacancies on the policy and budget advisory committee 
shall be filled in the same manner as the initial appointment. 

History. 

I.C., § 39-507, as added by 2006, ch. 304, 
§ l,p. 937. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-507 was repealed. See Prior 
Laws, § 39-501. 

39-508. Aquifer protection district funds — Fees — Budget. — 

(1) Funds received and expended in the name of an aquifer protection 
district shall be budgeted, managed and audited in the same manner as 
funds of a county. Any such revenues and expenditures shall be accounted 
for separate from other county funds. The reasonable expenses of managing 
aquifer protection district fiscal and legal affairs are legitimate costs of 
district operation and use of county systems for fee collection is authorized 
hereby. The fiscal year for an aquifer protection district shall conform to the 
fiscal year for counties. 

(2) Fees reasonably related to the actual cost of services rendered by an 
aquifer protection district may be charged to owners of land benefitted by 
the availability of water from the aquifer to be protected by the district. The 
maximum fee authorized per dwelling unit shall not exceed twelve dollars 
($12.00) annually. The maximum charge for nonresidential uses shall not 
exceed twice the maximum authorized residential fee, and such nonresiden- 
tial fee shall be established and calculated in a manner that is roughly 



237 CONTROL OF VENEREAL DISEASES 39-60 1 

proportional to aquifer use or other measure of benefits derived from 
protection of the aquifer. 

(3) Each fiscal year the budget and policy advisory committee shall 
conduct a public budgetary process, including at least one (1) public hearing 
concerning a proposed aquifer protection district budget, before recommend- 
ing a proposed budget to the governing board. Any such recommendation 
shall be transmitted to the governing board prior to the date of advertising 
the annual county budget hearing. The budget for an aquifer protection 
district shall be considered by the governing board in the course of its 
annual budget process. An aquifer protection district shall follow the 
financial accountability standards and limitations applicable to counties. 

History. 

I.C., § 39-508, as added by 2006, ch. 304, 
§ 1, p. 937. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-508 was repealed. See Prior 
Laws, § 39-501. 

CHAPTER 6 
CONTROL OF VENEREAL DISEASES 

SECTION. SECTION. 

39-601. Venereal diseases enumerated. for HIV, counseling and refer- 

39-60 1A. Policy on expenditures. ral services. 

39-602. Report of venereal disease to health 39-605. Rules for carrying out law. 

authorities. 39-606. Reports. 

39-603. Examination, treatment, and quar- 39-607. Penalties for violations. 

antine — Repression of prosti- 39-608. Transfer of body fluid which may 
tution. contain the HIV virus — Pun- 

39-604. Confined and imprisoned persons — ishment — Definitions — De- 



Examination, treatment, and 

quarantine — Victims of sex- 39-609. Declaration of policy. 

ual offenses — Access to of- 39-610. Disclosure of HIV and HBV reporting 

fenders' test results, testing information. 

39-601. Venereal diseases enumerated. — Syphilis, gonorrhea, ac- 
quired immunodeficiency syndrome (AIDS), AIDS related complexes (ARC), 
other manifestations of HIV (human immunodeficiency virus) infections, 
chancroid and hepatitis B virus (HBV) infections, hereinafter designated as 
venereal diseases, are hereby declared to be contagious, infectious, commu- 
nicable and dangerous to public health; and it shall be unlawful for anyone 
infected with these diseases or any of them to knowingly expose another 
person to the infection of such diseases. 

History. 70, § 1, p. 195; am. 1988, ch. 45, § 1, p. 50; 

1921, ch. 200, §§ 1, 6, p. 406; I.C.A., § 38- am. 1990, ch. 143, § 1, p. 322. 
501; am. 1945, ch. 52, § 1, p. 67; am. 1986, ch. 



39-60 1 A HEALTH AND SAFETY 238 

STATUTORY NOTES 

Cross References. Effective Dates. 

Congenital syphilis, tests for and control of, Section 2 of S.L. 1986, ch. 70 declared an 

§ 39-1001 et seq. ' emergency. Approved March 24, 1986. 

Contraceptives and prophylactics, sale of, 
§ 39-801 et seq. 
Compiler's Notes. 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 

OPINIONS OF ATTORNEY GENERAL 

Each incoming inmate confined to a deten- public health. OAG 87-7. (Opinion prior to 

tion facility in this state must be given a blood 1988 amendment of § 39-604.) 

examination in order to detect the existence of With regard to inmates who are HIV posi- 

AIDS. OAG 87-7. tive, or who have ARC or AIDS, the duty of 

The reference to "isolation or quarantine" in the Idaho department of correction to inmates 

§ 39-604 includes persons who have been and staff is to take reasonable measures to 

identified as having been infected by a vene- ensure the safety of both. No greater liability 

real disease included in this section; thus, is created by reasonably restricting access to 

prisoners having AIDS may be isolated or patient information. In fact, under some cir- 

quarantined while they serve their sentences cumstances, failure to protect the confidenti- 

if state health officials first determine that ality of such information could expose the 

such a quarantine is necessary to protect the department to liability. OAG 89-6. 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, §§ 53, C.J.S. — 39A C.J.S., Health and Environ- 

63. ment, § 28 et seq. 

39-601 A. Policy on expenditures. — It is the intent of the legislature 
that governmental authorities shall be required to provide those services 
authorized or mandated by law for treatment or testing for the diseases 
enumerated in section 39-601, Idaho Code, only to the extent of funding and 
available resources appropriated. 

History. 

I.C., § 39-601A, as added by 1988, ch. 45, 
§ 2, p. 50. 

39-602. Report of venereal disease to health authorities. — Any 

physician or other person who makes a diagnosis of or treats a case of 
venereal disease, and any superintendent or manager of a hospital, dispen- 
sary or charitable or penal institution, in which there is a case of venereal 
disease, shall immediately make a report of such case to the department of 
health and welfare, according to such form and manner as the state board 
of health and welfare shall direct. 

History. am. 1974, ch. 23, § 95, p. 633; am. 1990, ch. 

1921, ch. 200, § 2, p. 406; I.C.A., § 38-502; 143, § 2, p. 322. 



239 CONTROL OF VENEREAL DISEASES 39-604 

STATUTORY NOTES 

Cross References. Duty to make serological test during and 

Department of health and welfare, § 56- after pregnancy, § 39-1001. 
1001 et seq. 

39-603. Examination, treatment, and quarantine — Repression 
of prostitution. — State, county and municipal health officers, or their 
authorized deputies, within their respective jurisdiction, are hereby di- 
rected and empowered, when in their judgment it is necessary to protect the 
public health, to make examinations, or have examinations made by 
competent physician, of persons reasonably suspected of being infected with 
venereal disease, and to require persons infected with venereal disease to 
report for treatment to a reputable physician and continue treatment until 
cured, or to submit to treatment provided at public expense until cured, and 
also, when in their judgment it is necessary to protect the public health, to 
isolate or quarantine persons affected with venereal disease. It shall be the 
duty of all local and state health officers to investigate sources of infection 
of venereal diseases, to cooperate with the proper officials whose duty it is to 
enforce laws directed against prostitution, and otherwise to use every 
proper means for the repression of prostitution. 

History. 

1921, ch. 200, § 3, p. 406; I.C.A., § 38-503. 

STATUTORY NOTES 

Cross References. 

Abatement of moral nuisance, § 52-401 et 
seq. 

OPINIONS OF ATTORNEY GENERAL 

The reference to "isolation or quarantine" in antined while they serve their sentences if 

§ 39-604 includes persons who have been state health officials first determine that such 

identified as having been infected by a vene- a quarantine is necessary to protect the public 

real disease included in § 39-601; thus, pris- health. OAG 87-7 (opinion prior to 1988 

oners having AIDS may be isolated or quar- amendment of § 39-604). 

39-604. Confined and imprisoned persons — Examination, treat- 
ment, and quarantine — Victims of sexual offenses — Access to 
offenders' test results, testing for HIV, counseling and referral 
services. — (1) All persons who shall be confined or imprisoned in any 
state prison facility in this state shall be examined for on admission, and 
again before release, and, if infected, treated for the diseases enumerated in 
section 39-601, Idaho Code, and this examination shall include a test for 
HIV antibodies or antigens. This examination is not intended to limit any 
usual or customary medical examinations that might be indicated during a 
person's imprisonment. Nothing herein contained shall be construed to 
interfere with the service of any sentence imposed by a court as a punish- 
ment for the commission of crime. 

(2) All persons who shall be confined in any county or city jail may be 
examined for and, if infected, treated for the venereal diseases enumerated 



39-604 HEALTH AND SAFETY 240 

in section 39-601, Idaho Code, if such persons have, in the judgment of 
public health authorities and the jailer, been exposed to a disease enumer- 
ated in section 39-601, Idaho Code. 

(3) All persons who are charged with any sex offense in which body fluid, 
as defined in this chapter, has likely been transmitted to another shall be 
tested for the human immunodeficiency virus (HIV). At the request of the 
victim or parent, guardian or legal custodian of a minor victim, such test 
shall be administered not later than forty-eight (48) hours after the date on 
which the information or indictment is presented. 

(4) All persons, including juveniles, who are charged with sex offenses, 
drug related charges, prostitution, any crime in which body fluid has likely 
been transmitted to another, or other charges as recommended by public 
health authorities shall be tested for the venereal diseases enumerated in 
section 39-601, Idaho Code, and for hepatitis C virus. 

(5) All persons who are charged with any crime in which body fluid as 
defined in this chapter has likely been transmitted to another shall be tested 
for the presence of HIV antibodies or antigens, for hepatitis C virus and for 
hepatitis B virus. 

(6) If a person is tested as required in subsection (3), (4) or (5) of this 
section, the results of the test shall be revealed to the court. The court shall 
release the results of the test to the victim(s), or if the victim(s) is a minor, 
to the minor's parent, guardian or legal custodian. Whenever a prisoner 
tests positive for HIV antibodies or antigens, the victim(s) of said prisoner 
shall be entitled to counseling regarding HIV, HIV testing in accordance 
with applicable law, and referral for appropriate health care and support 
services. Said counseling, HIV testing and referral services shall be pro- 
vided to the victim(s) by the district health departments at no charge to the 
victim(s). Provided however, the requirement to provide referral services 
does not, in and of itself, obligate the district health departments to provide 
or otherwise pay for a victim's health care or support services. Any court, 
when releasing test results to a victim(s), or if the victim(s) is a minor, to the 
minor's parent, guardian, or legal custodian, shall explain or otherwise 
make the victim(s) or the victim's parent, guardian, or legal custodian, 
aware of the services to which the victim(s) is entitled as described herein. 

(7) Responsibility for the examination, testing and treatment of persons 
confined in county or city jails shall be vested in the county or city that 
operates the jail. The county or city may contract with the district health 
departments or make other arrangements for the examination, testing and 
treatment services. The district health department or other provider may 
charge and collect for the costs of such examination and treatment, as 
follows: 

(a) When the prisoner is a convicted felon awaiting transfer to the board 
of correction, or when the prisoner is a convicted felon being confined in 
jail pursuant to a contract with the board of correction, the board of 
correction shall reimburse such costs; 

(b) When the prisoner is awaiting trial after an arrest by any state officer, 
the state agency employing such arresting officer shall reimburse such 
costs; 

(c) When the prisoner is being held for any other authority or jurisdiction, 
including another state, the authority or jurisdiction responsible shall 
reimburse such costs unless otherwise provided for by contract. 



241 



CONTROL OF VENEREAL DISEASES 



39-605 



History. 

1921, ch. 200, § 4, p. 406; I.C.A., § 38-504; 
am. 1974, ch. 23, § 96, p. 633; am. 1988, ch. 
45, § 3, p. 50; am. 1989, ch. 220, § 1, p. 536; 



am. 1990, ch. 310, § 1, p. 850; am. 1993, ch. 
19, § 1, p. 71; am. 1994, ch. 408, § 1, p. 1278; 
am. 1999, ch. 323, § 1, p. 830; am. 2011, ch. 
70, § 1, p. 148. 



STATUTORY NOTES 



Cross References. 

Board of corrections, § 20-20 1A. 

Amendments. 

The 2011 amendment, by ch. 70, added 
subsection (3) and renumbered the subse- 
quent subsections accordingly and inserted 
"or (5)" near the beginning of subsection (6). 

Compiler's Notes. 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 



Effective Dates. 

Section 2 of S.L. 1994, ch. 408 declared an 
emergency. Approved April 7, 1994. 

Section 2 of S.L. 2011, ch. 70 declared an 
emergency retroactively to February 15, 2011 
and approved March 16, 2011. 



JUDICIAL DECISIONS 



Order for Testing Improper. 

An order requiring a defendant who bit an 
officer on the leg to undergo testing for HIV 
and the hepatitis B virus was improper, 
where the officer was wearing duty pants with 
long Johns underneath. Although the skin was 
broken, there was no testimony that the pants 



or the long Johns were torn, and it was not 
apparent that body fluids likely would have 
passed through the clothing, and the state's 
expert witness refused to affirmatively assert 
that it was more likely than not that body 
fluid was transferred. State v. Johnson, 131 
Idaho 808, 964 P.2d 675 (Ct. App. 1998). 



OPINIONS OF ATTORNEY GENERAL 



Each incoming inmate confined to a deten- 
tion facility in this state must be given a blood 
examination in order to detect the existence of 
AIDS. OAG 87-7. 

Prison officials cannot continue to hold in 
quarantine those persons whose terms of im- 
prisonment have expired unless other classes 
of AIDS victims are also subjected to similar 
quarantine. OAG 87-7. 

The reference to "isolation or quarantine" in 
this section includes persons who have been 
identified as having been infected by a vene- 
real disease included in § 39-601; thus, pris- 
oners having AIDS may be isolated or quar- 
antined while they serve their sentences if 
state health officials first determine that such 
a quarantine is necessary to protect the public 
health. OAG 87-7. (Opinion prior to 1988 
amendment.) 



The state is responsible for medical costs 
incurred by state detention facilities for the 
examination and treatment of venereal dis- 
ease, including the detection and treatment of 
prisoners found to be infected with AIDS. 
OAG 87-7. 

With regard to inmates who are HIV posi- 
tive, or who have ARC or AIDS, the duty of 
the Idaho department of correction to inmates 
and staff is to take reasonable measures to 
ensure the safety of both. No greater liability 
is created by reasonably restricting access to 
patient information. In fact, under some cir- 
cumstances, failure to protect the confidenti- 
ality of such information could expose the 
department to liability. OAG 89-6. 



RESEARCH REFERENCES 



A.L.R. — Validity and propriety under cir- 
cumstances, of court-ordered HIV testing. 87 
A.L.R.5th 631. 



39-605. Rules for carrying out law. — The state board of health and 
welfare is hereby empowered and directed to make such rules as shall, in its 
judgment, be necessary for the carrying out of the provisions of this chapter, 
including rules providing for the control and treatment of persons isolated 
or quarantined under the provisions of section 39-603, Idaho Code, and such 



39-606 HEALTH AND SAFETY 242 

other rules, not in conflict with provisions of this chapter, concerning the 
control of venereal diseases, and concerning the care, treatment and 
quarantine of persons infected therewith, as it may from time to time deem 
advisable. All such rules so made shall be of force and binding upon all 
county and municipal health officers and other persons affected by this 
chapter, and shall have the force and effect of law. Such rules may be 
amended from time to time by the state board of health and welfare. All 
rules must be entered on the minutes of the state board of health and 
welfare and copies shall be furnished to all county and municipal health 
officers and to anyone else who may apply for same. Such rules shall be 
adopted and become effective in accordance with the provisions of chapter 
52, title 67, Idaho Code. 

History. am. 1974, ch. 23, § 97, p. 633; am. 1993, ch. 

1921, ch. 200, § 5, p. 406; I.C.A., § 38-505; 216, § 24, p. 587. 

STATUTORY NOTES 

Cross References. 

Board of health and welfare, § 56-1005. 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, § 35 et C.J.S. — 39A C.J.S., Health and Environ- 
seq. ment, § 28 et seq. 

39-606. Reports. — Reports to the director of the department of health 
and welfare of the existence of diseases included in this chapter shall be 
made by the name of the patient being treated for such disease. It is the 
intent of this chapter to observe all possible secrecy for the benefit of the 
sufferer so long as the said sufferer conforms to the requirements of this 
chapter. Confidential disease reports containing patient identification re- 
ported under this section shall only be used by public health officials who 
must conduct investigations and shall be subject to disclosure according to 
chapter 3, title 9, Idaho Code. Any person who willfully or maliciously 
discloses the content of any confidential public health record, as described 
herein to any third party, except pursuant to a written authorization by the 
person who is the subject of the record or by his or her guardian or 
conservator, or as otherwise authorized by law, shall be guilty of a misde- 
meanor. 

History. 222, § 1, p. 474; am. 1990, ch. 213, § 38, p. 

1921, ch. 200, § 7, p. 406; I.C.A., § 38-506; 480. 
am. 1974, ch. 23, § 98, p. 633; am. 1987, ch. 

OPINIONS OF ATTORNEY GENERAL 

With regard to inmates who are HIV posi- is created by reasonably restricting access to 

tive, or who have ARC or AIDS, the duty of patient information. In fact, under some cir- 

the Idaho department of correction to inmates cumstances, failure to protect the confidenti- 

and staff is to take reasonable measures to ality of such information could expose the 

ensure the safety of both. No greater liability department to liability. OAG 89-6. 



243 CONTROL OF VENEREAL DISEASES 39-608 

39-607. Penalties for violations. — Any person who shall violate any 
lawful rule or regulation made by the state board of health and welfare, 
pursuant to the authority herein granted, or who shall fail or refuse to obey 
any lawful order issued by any public health authority, pursuant to the 
authority granted in this chapter, or any person who, knowing that he or she 
is infected with syphilis, gonorrhea or chancroid, exposes another person to 
the infection of such disease, shall be deemed guilty of a misdemeanor, and 
shall be punished, on conviction thereof, by a fine of not more than three 
hundred dollars ($300) or by imprisonment in the county jail for not more 
than six (6) months; or by both such fine and imprisonment. 

History. am. 1945, ch. 55, § 1, p. 71; am. 1974, ch. 23, 

1921, ch. 200, § 8, p. 406; I.C.A., § 38-507; § 99, p. 633; am. 1988, ch. 45, § 4, p. 50. 

STATUTORY NOTES 

Cross References. act should be in full force and effect on and 

Board of health and welfare, § 56-1005. after July 1, 1974. 

Effective Dates. 

Section 182 of S.L. 1974, ch. 23 provided the 

RESEARCH REFERENCES 

Am. Jur. — 39 Am. Jur. 2d, Health, § 90 et C.J.S. — 39A C.J.S., Health and Environ- 

seq. ment, §§ 88, 89. 

39-608. Transfer of body fluid which may contain the HIV virus 
— Punishment — Definitions — Defenses. — (1) Any person who 
exposes another in any manner with the intent to infect or, knowing that he 
or she is or has been afflicted with acquired immunodeficiency syndrome 
(AIDS), AIDS related complexes (ARC), or other manifestations of human 
immunodeficiency virus (HIV) infection, transfers or attempts to transfer 
any of his or her body fluid, body tissue or organs to another person is guilty 
of a felony and shall be punished by imprisonment in the state prison for a 
period not to exceed fifteen (15) years, by fine not in excess of five thousand 
dollars ($5,000), or by both such imprisonment and fine. 

(2) Definitions. As used in this section: 

(a) "Body fluid" means semen (irrespective of the presence of 
spermatozoa), blood, saliva, vaginal secretion, breast milk, and urine. 

(b) "Transfer" means engaging in sexual activity by genital-genital con- 
tact, oral-genital contact, anal-genital contact; or permitting the use of a 
hypodermic syringe, needle, or similar device without sterilization; or 
giving, whether or not for value, blood, semen, body tissue, or organs to a 
person, blood bank, hospital, or other medical care facility for purposes of 
transfer to another person. 

(3) Defenses: 

(a) Consent. It is an affirmative defense that the sexual activity took 
place between consenting adults after full disclosure by the accused of the 
risk of such activity. 

(b) Medical advice. It is an affirmative defense that the transfer of body 
fluid, body tissue, or organs occurred after advice from a licensed 
physician that the accused was noninfectious. 



39-609 HEALTH AND SAFETY 244 

History. 

I.C., § 39-608, as added by 1988, ch. 151, 
§ 1, p. 271. 

STATUTORY NOTES 

Compiler's Notes. 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 

JUDICIAL DECISIONS 

Analysis 

Double jeopardy. 
Elements required. 
Sentence upheld. 

Double Jeopardy. Defendant was properly convicted of trans- 

The district court did not err in ruling that ferring body fluid that might contain the 

defendant's prosecution for the crime of lewd human immunodeficiency ^ (H IV) after 

conduct, § 18-1508, was not barred by double , * , A , , 

jeopardy because of his previous prosecution engaging in oral sex with a woman without 

for the crime of transferring the HIV virus, advising her of his HIV status. One can trans- 

which ended in a sua sponte mistrial, where ^ er ones body fluid via oral-genital contact 

the essential elements of the lewd conduct and "body fluid" includes saliva. State v. 

charge did not constitute a violation of the Mubita, 145 Idaho 925, 188 P.3d 867 (2008). 

HIV offense because the state did not produce ~ TT h 1H 

evidence of defendant's conduct as a knowing e T n „ enc ® , *\ % \ . , , , 

carrier of HIV. State v. Lewis, 123 Idaho 336, ***** the *****%£ had P reviou * s f ual 

848 P2d 394 (1993) encounters while HIV positive without in- 
forming his partner, and the current offense 

Elements Required. for which he was convicted demonstrated his 

In order to find the defendant guilty of lack of regard for the health and safety of 

transferring body fluid which may have con- others when those interests were in competi- 

tained the HIV virus, the jury needed to tion with the fulfillment of his own personal 

conclude only that the defendant knowingly desires, then there was no abuse of discretion 

transferred or attempted to transfer his body in the court's imposition of a fixed seven-year 

fluid to the victim without first informing her sentence followed by eight years indetermi- 

ofhis HIV status. State v. Thomas, 133 Idaho nate. State v. Thomas, 133 Idaho 172, 983 

172, 983 P.2d 245 (Ct. App. 1999). P.2d 245 (Ct. App. 1999). 

39-609. Declaration of policy. — The legislature hereby declares that 
infection with human immunodeficiency virus, the virus which causes 
acquired immune deficiency syndrome (AIDS), is an infectious and commu- 
nicable disease that endangers the population of this state. The legislature 
further declares that reporting of HIV infection to public health officials is 
essential to enable a better understanding of the disease, the scope of 
exposure, the impact on the community, and the means of control and that 
efforts to control the disease should include public education, counseling, 
and voluntary testing and that restrictive enforcement measures should be 
used only when necessary to protect the public health. It is hereby declared 
to be the policy of this state that an effective program of preventing AIDS 
must maintain the confidentiality of patient information and restrict the use 
of such information solely to public health requirements. This confidential- 
ity is essential so that infected persons are encouraged to reveal their 
condition to persons who have a legitimate need to know in order that they 
may assist the patient. Conversely, there is a need for certain individuals to 
know of the patient's condition so that they may be protected from the 



245 CONTROL OF VENEREAL DISEASES 39-610 

disease or protect themselves and others closely associated with them or 
with the patient. The legislature believes that the balancing of the need to 
know by certain individuals in relationship to the need to maintain 
confidentiality to encourage reporting is essential to control the spread of 
the disease. This balancing cannot be fully codified in statutory law and 
must be left to the judgment and discretion of public health officials. If in the 
judgment of public health authorities an imminent danger to the public 
health exists due to an individual having a disease enumerated in section 
39-601, Idaho Code, public health authorities shall take such action as is 
authorized in this chapter and as is necessary to prevent danger to the 
public health. Persons who have a legitimate need to know may include 
health care personnel, doctors, nurses, dentists, persons providing emer- 
gency medical services, morticians, lab technicians and school authorities. 
This is not intended to limit the usual and customary exchange of informa- 
tion between health care providers. 

History. 

I.C., § 39-609, as added by 1988, ch. 45, 
§ 5, p. 50; am. 1990, ch. 143, § 3, p. 322. 

STATUTORY NOTES 

Compiler's Notes. 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 

OPINIONS OF ATTORNEY GENERAL 

With regard to inmates who are HIV posi- is created by reasonably restricting access to 

tive, or who have ARC or AIDS, the duty of patient information. In fact, under some cir- 

the Idaho department of correction to inmates cumstances, failure to protect the confidenti- 

and staff is to take reasonable measures to ality of such information could expose the 

ensure the safety of both. No greater liability department to liability. OAG 89-6. 

39-610. Disclosure of HIV and HBV reporting information. — 

(1) Confidential public health record as described in section 39-606, Idaho 
Code, shall be subject to disclosure according to chapter 3, title 9, Idaho 
Code, shall not be discoverable, and shall not be compelled to be produced in 
any civil or administrative hearing. 

(2) State or local health authorities may contact and advise those persons 
who, in the judgment of health authorities, have been exposed to the HIV 
(human immunodeficiency virus) or hepatitis B (HBV) infections. 

(3) The department of health and welfare shall, in a manner established 
by rules and regulations, accept from persons involved in providing emer- 
gency or medical services reports of significant exposures to the blood or 
body fluids of a patient or deceased person. The department of health and 
welfare shall promulgate rules and regulations defining the term "signifi- 
cant exposure" as used in this section. Upon receipt of a report made 
pursuant to section 39-602, Idaho Code, confirming the presence of HIV or 
HBV virus in a patient or a deceased person, the director of the department 
of health and welfare, or his designee, shall immediately contact and advise 
any and all persons who, on the basis of information then or thereafter 



39-610 HEALTH AND SAFETY 246 

reported to the department, have had a significant exposure to the blood or 
body fluids of that infected patient or deceased person. The significantly 
exposed person shall be informed only that he may have been exposed to 
HIV or HBV, as the case may be, and thereafter advised of whatever 
prophylactic and testing procedures are appropriate. The significantly 
exposed person shall not be informed of the name of the infected patient or 
deceased person. Additionally, the department of health and welfare shall, 
to the greatest extent consistent with public health requirements, maintain 
the confidentiality of the identity of the significantly exposed person. 

(4) Public health authorities may disclose personally identifying informa- 
tion in public health records, as described in section 39-606, Idaho Code, to 
other local or state public health agencies when the confidential information 
is necessary to carry out the duties of the agency in the investigation, control 
and surveillance of disease, as determined by the state board of health and 
welfare, or as otherwise authorized by law. 

(5) Nothing in this chapter imposes liability or criminal sanction for 
disclosure or nondisclosure of the results of a blood test to detect HIV or 
HBV virus in accordance with any reporting requirements of the depart- 
ment of health and welfare. 

History. § 6, p. 50; am. 1990, ch. 143, § 4, p. 322; am. 

I.C., § 39-610, as added by 1988, ch. 45, 1990, ch. 213, § 39, p. 480. 

STATUTORY NOTES 

Cross References. section, and substituted "shall be subject to 

Board of health and welfare, § 56-1005. disclosure according to chapter 3, title 9, 

Idaho Code, shall not be discoverable, and 

Amendments. shall not be compelled" for "shall be disclosed, 

This section was amended by two 1990 acts shall be discoverable, or compelled"; made the 

which appear to be compatible and have been same changes throughout the remainder of 

compiled together. the section as the ch - 143 amendment. 

The 1990 amendment, by ch. 143, § 4, Compiler's Notes. 
added "or hepatitis B (HBV) infections" to the The words enclosed in parentheses so ap- 
end of subsection (2); added the present sub- peared in the law as en acted. 
section (3) and redesignated the former sub- 
sections (3) and (4) as the present subsections Effective Dates. 

(4) and (5), respectively; in the present sub- Section 111 of S.L. 1990, ch. 213 as 
section (5), inserted "or HBV" following "de- amended by § 16 of S.L. 1991, ch. 329 pro- 
tect HIV." vided that §§ 3 through 45 and 48 through 

The 1990 amendment, by ch. 213, § 39, in 110 of the act should take effect July 1, 1993 

subsection (1), substituted "Confidential" for and that §§ 1, 2, 46 and 47 should take effect 

"No confidential" at the beginning of the sub- July 1, 1990. 

CHAPTER 7 
ADVERTISING CURES FOR SEXUAL DISORDERS 

SECTION. 

39-701 — 39-704. [Repealed.] 



247 CONTRACEPTIVES AND PROPHYLACTICS 39-80 1 

39-701 — 39-704. Advertising treatments unlawful — Exemptions 
— Penalty for violation. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. § 39-703. (1921, ch. 201, § 3, p. 408; I.C.A., 

The following sections were repealed by § 38-603). 
S.L. 1994, ch. 137, § 1, effective July 1, 1994: § 39-704. (1921, ch. 201, § 4, p. 408; I.C.A., 

§ 39-701. (1921, ch. 201, § 1, p. 408; I.C.A., § 38-604). 
§ 38-601). 

§ 39-702. (1921, ch. 201, § 2, p. 408; I.C.A., 
§ 38-602). 

CHAPTER 8 
CONTRACEPTIVES AND PROPHYLACTICS 

SECTION. SECTION. 

39-801. Registration required to sell and dis- — Arrest of violators — Sei- 

tribute prophylactics and con- zure and confiscation, 

traceptives — Fees. 39-804. Penalty for violations. 

39-802. Manufacturer to be identified — 39-805 — 39-807. [Repealed.] 

Compliance with standards — 39-808. [Amended and redesignated.] 

Rules and regulations. 39-809, 39-810. [Repealed.] 

39-803. Revocation or suspension of licenses 

39-801. Registration required to sell and distribute prophylac- 
tics and contraceptives — Fees. — (1) Every wholesaler or manufac- 
turer of prophylactics or contraceptives who distributes in the state shall 
annually submit an application for registration to the board of pharmacy: 

(a) The application shall be made in writing on a form prepared by the 
board and be accompanied by an appropriate fee set by the board. 

(b) Registrations shall be in effect for one (1) year from January 1 of each 
year. Registrations are not transferable. All fees collected by the state 
board of pharmacy shall be remitted to the state treasurer and placed to 
the credit of the pharmacy fund [account] . 

(c) Registrations shall be conspicuously displayed and the wholesaler or 
manufacturer to whom they are issued shall be open to inspection by the 
board or other authorized persons designated by the board. 

(d) Each application for registration shall include a list of all products or 
brands of prophylactics and contraceptives the applicant wishes to have 
approved for sale in the state. 

(2) At the time of making application for registration (and at any time a 
new product is to be distributed in this state) every manufacturer or 
wholesaler (who distributes products of a different brand than those 
authorized for sale under a manufacturer's registration) which intends to 
distribute contraceptive and prophylactic products, shall furnish to the 
board the names of such products and in addition: 

(a) The board may require proof to be furnished by the manufacturer or 
wholesaler that these products have received approval in accordance with 
the Federal Food, Drug and Cosmetic Act and regulations thereunder 
(title 21 USC & CFR). 

(b) The requirements under the Federal Food, Drug and Cosmetic Act 
and regulations thereunder (title 21 USC & CFR) relating to the products 



39-802 HEALTH AND SAFETY 248 

mentioned in subsection (2) of this section are adopted by reference and 
made a part hereof. 

History. 

I.C., § 39-801, as added by 1982, ch. 358, 
§ 2, p. 906. 

STATUTORY NOTES 

Cross References. Federal References. 

Board of pharmacy, § 54-1706. The Federal Food, Drug and Cosmetic Act is 

State treasurer, § 67-1201 et seq. codified at 21 USCS § 301 et seq. 

Prior Laws. Compiler's Notes. 

i7 js on onu ononi u- i. The bracketed insertion at the end of sub- 

FO T e *J^ 9 :*°lt°* 9 ~ 804 ' J C C °™~ ^vision (1Kb) was added by the compiler to 

prised 1937, ch. 72, §§ 1 to 4, p. 95; am. 1949, correct the name of the re f e renced account. 

ch. 31, § 1, p. 52; am. 1974, ch. 23, § 100, p. See § 54-1720. 

633, were repealed by S.L. 1982, ch. 358, § 1, The words in parentheses so appeared in 

effective April 2, 1982. the law as enacted. 

RESEARCH REFERENCES 

A.L.R. — Forbidding or regulating sale or formation, and contraceptives. 96 A.L.R.3d 
advertisement of abortives, birth-control in- 955. 

39-802. Manufacturer to be identified — Compliance with stan- 
dards — Rules and regulations. — Only such goods of the class specified 
in section 39-801, Idaho Code, shall be sold or dispensed as specifically 
identify the manufacturer thereof by firm name and address on the 
appliance or container in which the goods are sold or intended to be sold, nor 
shall any such goods be sold or dispensed unless the same shall comply with 
the standards as to such goods, respecting grade and quality, as may be 
prescribed by the board of pharmacy. The board of pharmacy is hereby 
authorized to adopt and promulgate such rules and regulations and estab- 
lish standards relating to and governing such appliances and medicinal 
preparations and the sale or other dispensation thereof as may be necessary 
in the interest of disease prevention and in carrying out the purposes of this 
chapter. 

History. 

I.C., § 39-802, as added by 1982, ch. 358, 
§ 3, p. 906. 

STATUTORY NOTES 

Cross References. 

Board of pharmacy, § 54-1706. 

Prior Laws. 

Former § 39-802 was repealed. See Prior 
Laws, § 39-801. 

39-803. Revocation or suspension of licenses — Arrest of viola- 
tors — Seizure and confiscation. — The state board of pharmacy shall 
have the power to revoke or suspend registrations, upon a fair hearing, for 



249 CONTRACEPTIVES AND PROPHYLACTICS 39-807 

violation of any of the provisions of this chapter; to cause the arrest of any 
person or persons violating the provisions of this chapter; to seize, and upon 
fair hearing, confiscate stocks illegally held and to seize, and after fair 
hearing, confiscate any prophylactic or contraceptive products not conform- 
ing to standards set by this chapter, and to make seizure, and after fair 
hearing, confiscation of any mechanical device or vending machine contain- 
ing prophylactics or contraceptives coming within the provisions of this 
chapter, and cause the arrest of the owner of such machine and the occupier 
or owner of the premises where seizure is made, for violation of the 
provisions of this chapter. 

History. 

I.C., § 39-803, as added by 1982, ch. 358, 
§ 4, p. 906. 

STATUTORY NOTES 

Cross References. 

Board of pharmacy, § 54-1706. 

Prior Laws. 

Former § 39-803 was repealed. See Prior 
Laws, § 39-801. 

39-804. Penalty for violations. — Any person, firm, or corporation, or 
any member or employee of any firm or any officer, director or employee of 
a corporation who violates or who aids or abets in the violation of any of the 
provisions of this chapter, or in any rule or regulation of the board of 
pharmacy promulgated hereunder, shall be guilty of a misdemeanor and, 
upon conviction, shall be punished as provided by section 18-113, Idaho 
Code. 

History. § 1, p. 52; am. 1974, ch. 23, § 102, p. 633; am. 

1937, ch. 72, § 8, p. 95; am. 1949, ch. 31, and redesig. 1982, ch. 358, § 5, p. 906. 

STATUTORY NOTES 

Cross References. Effective Dates. 

Board of pharmacy, § 54-1706. Section 6 of S.L. 1982, ch. 358 declared an 

Prior Laws. emergency. Approved April 2, 1982. 

Former § 39-804 was repealed. See Prior 
Laws, § 39-801. 
Compiler's Notes. 

This section was formerly compiled as § 39- 
808. 

39-805 — 39-807. Retail licenses and sales — Compliance with 
standards, rules and regulations — Display and adver- 
tising unlawful. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 52; am. 1971, ch. 160, § 1, p. 779; am. 1974, 

These sections, which comprised 1937, ch. ch. 23, § 101, p. 633, were repealed by S.L. 
72, §§ 5 to 7, p. 95; am. 1949, ch. 31, § 1, p. 1982, ch. 358, § 1, effective April 2, 1982. 



39-808 HEALTH AND SAFETY 250 

39-808. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. ignated as § 39-804 by S.L. 1982, ch. 358, 

Former § 39-808 was amended and redes- § 5. 

39-809, 39-810. Suppositories and other articles — Revocation or 
suspension of licenses — Arrest — Seizure and confis- 
cation. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 353; am. 1949, ch. 31, § 1, p. 52; am. 1974, ch. 

These sections, which comprised 1937, ch. 23, § 103, p. 633 were repealed by S.L. 1982, 
72, §§ 9, 10, as added by 1939, ch. 187, § 1, p. ch. 358, § 1, effective April 2, 1982. 

CHAPTER 9 

PREVENTION OF BLINDNESS AND OTHER 
PREVENTABLE DISEASES IN INFANTS 

SECTION. SECTION. 

39-901. Inflammation of eyes of newborn de- ance — Certification to prose- 

39-902. Report to he^thoffi^r- Warning of ^^ p^™^^™** 

danger — lreatment of inch- on ono „, , x , „ , 

gent cases 39-909. Tests for phenylketonuria and pre- 

39-903. Germicide to be instilled in eyes of yentable diseases in newborn 

newborn baby. infants. 

39-904. Statement in report of birth. 39-910. Duties of director in enforcing act. 

39-905. Duties of local health officer. 39-911. Violations — Penalty. 

39-906. Duties of director. 39-912. Exemption because of religious be- 
39-907. Birth reports not showing compli- lief. 

39-901. Inflammation of eyes of newborn defined. — Any inflam- 
mation, swelling, or unusual redness in either one (1) or both eyes of any 
infant, either apart from, or together with any unnatural discharge from the 
eye or eyes of such infant, independent of the nature of the infection, if any, 
occurring at any time within two (2) weeks after the birth of such infant, 
shall be known as "inflammation of the eyes of the newborn" (Ophthalmia 
neonatorum). 

History. 

1921, ch. 233, § 1, p. 522; I.C.A., § 38-701. 

STATUTORY NOTES 

Compiler's Notes. 

The words enclosed in parentheses so ap- 
peared in the law as enacted. 

39-902. Report to health officer — Warning of danger — Treat- 
ment of indigent cases. — It shall be the duty of any physician, surgeon, 
obstetrician, midwife, nurse, maternity home or hospital of any nature, 



251 PREVENTION OF BLINDNESS IN INFANTS 39-905 

parent, relative and persons attendant on or assisting in any way whatso- 
ever any infant, or the mother of any infant at childbirth, or any time within 
two (2) weeks after childbirth, knowing the condition hereinabove denned to 
exist, immediately to report such fact in writing, to the local health officer of 
the county, city, town, magisterial district or whatever other political 
division there may be within which the infant or the mother of any infant 
may reside. Midwives shall immediately report conditions to some qualified 
practitioner of medicine and thereupon withdraw from the case except as 
they may act under the physician's instructions. On receipt of such report, 
the health officer, or the physician notified by a midwife, shall immediately 
give to the parents or persons having charge of such infant a warning of the 
dangers to the eye or eyes of said infant, and shall for indigent cases provide 
the necessary treatment at the expense of said county, city, or town. 

History. 

1921, ch. 233, § 2, p. 522; I.C.A., § 38-702. 

39-903. Germicide to be instilled in eyes of newborn baby. — It 

shall be unlawful for any physician or midwife practicing midwifery to 
neglect, or otherwise fail to instill or have instilled immediately upon its 
birth, in the eyes of the newborn babe, some germicide of proved efficiency 
in preventing the development of ophthalmia neonatorum. 

History. 

1921, ch. 233, § 3, p. 522; I.C.A., § 38-703. 

39-904. Statement in report of birth. — Every physician or midwife 
shall, in making a report of a birth, state whether or not the above germicide 
was instilled into the eyes of said infant. 

History. 

1921, ch. 233, § 4, p. 522; I.C.A., § 38-704. 

STATUTORY NOTES 

Cross References. 

Registration of births, § 39-241 et seq. 

39-905. Duties of local health officer. -— It shall be the duty of the 
local health officer: 

1. To investigate, or have investigated, each case as filed with him in 
pursuance of the law, and any other cases as may come to his attention. 

2. To report all cases of inflammation of the eyes of the newborn, and the 
result of all such investigations as the state board of health and welfare 
shall direct. 

3. To conform to such other rules and regulations as the state board of 
health and welfare shall promulgate for his further guidance. 

History. 

1921, ch. 233, § 5, p. 522; I.C.A., § 38-705; 
am. 1974, ch. 23, § 104, p. 633. 



39-906 HEALTH AND SAFETY 252 

STATUTORY NOTES 

Cross References. 

Board of health and welfare, § 56-1005. 

39-906. Duties of director. — It shall be the duty of the director of the 
department of health and welfare: 

1. To enforce the provisions of this chapter. 

2. To administer such rules and regulations as shall, under this chapter, 
be necessary for the purpose of this chapter, and such as the state board of 
health and welfare may deem necessary for the further and proper guidance 
of local health officers. 

3. To publish and promulgate such further advice and information 
concerning the dangers of inflammation of the eyes of the newborn as is 
necessary for prompt and effective treatment. 

4. To furnish copies of this law to all physicians and midwives as may be 
engaged in the practice of obstetrics, or assisting at childbirth. 

5. To keep a proper record of any and all cases of inflammation of the eyes 
of the newborn as shall be filed in the office of the state board of health and 
welfare in pursuance of this law, and as may come to their attention in any 
way, and to constitute such records a part of the annual report to the 
governor. 

6. To report any and all violations of this chapter as may come to their 
attention to the prosecuting attorney of the county wherein said misde- 
meanor may have been committed, and to assist said official in any way 
possible, as by securing necessary evidence, et cetera. 

7. To furnish birth certificates which shall include the question "Did you 
comply with section six [three] of this act? If so, state what solution used." 

History. 

1921, ch. 233, § 6, p. 522; I.C.A., § 38-706; 
am. 1974, ch. 23, § 105, p. 633. 

STATUTORY NOTES 

Cross References. however, that section three (codified as § 39- 

Board of health and welfare, § 56-1005. 903) was intended, and therefore the word 

Compiler's Notes "three" was inserted in brackets by the com- 

In subsection 7 of this section the question, ^ £F' ,«,. » n ^ T -««.. i 

"Did you comply with section six of this act? If The words tlus act refer to SL - 1921 > ch - 

so, state what solution used," is printed as it 233, which is codified as §§ 39-901 to 39-908. 

appears in the session laws. It is probable, 

39-907. Birth reports not showing compliance — Certification to 
prosecuting attorney. — It shall be the duty of the clerk of the county 
court of each county on or before the fifteenth day of each month to certify 
to the prosecuting attorney of his county all reports of births filed during the 
preceding calendar month which fail to show that the solution hereinbefore 
provided for was instilled. 

History. 

1921, ch. 233, § 7, p. 522; I.C.A., § 38-707. 



253 PREVENTION OF BLINDNESS IN INFANTS 39-910 

39-908. Penalty for violation. — Whoever being a physician, surgeon, 
midwife, obstetrician, nurse, manager or person in charge of a maternity 
home or hospital, parent, relative or person attending upon or assisting at 
the birth of an infant, violates any of the provisions of this chapter, shall be 
deemed guilty of misdemeanor, and upon conviction thereof shall be fined a 
sum of not less than ten dollars ($10.00) nor more than $100.00. 

History. 

1921, ch. 233, § 8, p. 522; I.C.A., § 38-708. 

39-909. Tests for phenylketonuria and preventable diseases in 
newborn infants. — It shall be the duty of the administrative officer or 
other person in charge of each hospital or other institution caring for 
newborn infants and the person responsible for the registration of the birth 
of such infant under section 39-256 [§ 39-255], Idaho Code, to cause to have 
administered to every newborn infant in its or his care a test for 
phenylketonuria and such other tests for preventable diseases as prescribed 
by the state board of health and welfare. The person administering such 
tests shall make such reports of the results thereof as required by the state 
board of health and welfare. 

History. 

1965, ch. 223, § 1, p. 510; am. 1974, ch. 23, 
§ 106, p. 633. 

STATUTORY NOTES 

Cross References. serted by the compiler to account for the fact 

Board of health and welfare, § 56-1005. that § 39-256 was amended and redesignated 

Compiler's Notes. as § 39-255 by § 15 of S.L. 1983, ch. 7. 
The bracketed reference "§ 39-255" was in- 

39-910. Duties of director in enforcing act. — It shall be the duty of 
the director of the department of health and welfare: 

1. To enforce the provisions of this act. 

2. To prescribe what tests shall be made for preventable diseases in 
addition to the test for phenylketonuria. 

3. To publish rules of the board prescribing the time and manner of 
administering tests required by this act. 

4. To furnish copies of this act and the rules promulgated hereunder to 
physicians, hospitals or other institutions or persons required by this act to 
have tests administered to newborn infants. 

5. To maintain a record of all infants found to have phenylketonuria or 
other preventable diseases and to supervise local health agencies in the 
treatment and cure of such infants. 

6. To disseminate information and advice to the public concerning the 
dangers and effects of phenylketonuria and other preventable diseases and 
their detection and treatment. 



39-911 HEALTH AND SAFETY 254 

History. 

1965, ch. 223, § 2, p. 510; am. 1974, ch. 23, 
§ 107, p. 633. 

STATUTORY NOTES 

Cross References. 223, §§ 1 to 4, which are compiled as §§ 39- 

Director of the department of health and 909 to 39-912. 
welfare, § 56-1003. 
Compiler's Notes. 

The words "this act" refer to S.L. 1965, ch. 

39-911. Violations — Penalty. — Any person who violates the provi- 
sions of this act or rules promulgated by the state board of health and 
welfare thereunder, shall be guilty of a misdemeanor. 

History. 

1965, ch. 223, § 3, p. 510; am. 1974, ch. 23, 
§ 108, p. 633. 

STATUTORY NOTES 

Cross References. Effective Dates. 

Board of health and welfare, § 56-1005. Section 182 of S.L. 1974, ch. 23 provided the 

Compiler's Notes. act should be in full force and effect on and 

The words "this act" refer to S.L. 1965, ch. after July 1, 1974. 
223, §§ 1 to 4, which are compiled as §§ 39- 
909 to 39-912. 

39-912. Exemption because of religious belief. — The provisions of 
this act shall not apply to any child whose parent or guardian objects thereto 
on the grounds that it conflicts with the tenets or practices of a recognized 
church or religious denomination of which said parent or guardian is an 
adherent or member. 

History. 

1965, ch. 223, § 4, p. 510. 

STATUTORY NOTES 

Compiler's Notes. 223, §§ 1 to 4, which are compiled as §§ 39- 

The words "this act" refer to S.L. 1965, ch. 909 to 39-912. 

CHAPTER 10 
PREVENTION OF CONGENITAL SYPHILIS 

SECTION. SECTION. 

39-1001. Serological test of pregnant or re- 39-1004. Laboratory report of test. 

cently-delivered women. 39-1005. Reports of births and stillbirths to 
39-1002. Procedure when woman not at- note making of test. 

tended by licensed physician. 39-1006. Penalty for violations. 
39-1003. Standard serological test denned. 

39-1001. Serological test of pregnant or recently-delivered 

women. — Every licensed physician attending a pregnant woman for a 



255 PREVENTION OF CONGENITAL SYPHILIS 39-1003 

condition relating to her pregnancy, or at delivery, or after delivery for a 
condition relating to her pregnancy, shall in the case of every woman so 
attended, take or cause to be taken a sample of blood of such woman at the 
time of first examination or within fifteen (15) days thereafter, and shall 
submit such sample to the laboratory of the department of health and 
welfare or to a laboratory approved by the director of the department, for a 
standard serological test for syphilis. In submitting such sample to the 
laboratory, the physician shall specify whether it is for a prenatal test or a 
test following recent delivery. The laboratory of the department of health 
and welfare shall analyze such sample upon the request of any licensed 
physician and may collect a fee for the performance of such analyses. 

History. 

1943, ch. 26, § 1, p. 53; am. 1970, ch. 26, 
§ 1, p. 52; am. 1974, ch. 23, § 109, p. 633. 

STATUTORY NOTES 

Cross References. Department of health and welfare, § 56- 

Control of venereal diseases generally, 1001 et seq. 
§ 39-601 et seq. 

39-1002. Procedure when woman not attended by licensed phy- 
sician. — Every other person attending a pregnant or recently delivered 
woman in the state, but not permitted by law to take blood samples, shall 
within fifteen (15) days of the first examination cause a sample of blood of 
such woman to be taken by a licensed physician and have the sample 
submitted to the laboratory of the state department of health and welfare 
for a standard serological test for syphilis, or to a laboratory approved by 
said board [department]. 

History. 

1943, ch. 26, § 2, p. 53; am. 1974, ch. 23, 
§ 110, p. 633. 

STATUTORY NOTES 

Cross References. 223, §§ 1 to 4, which are compiled as §§ 39- 

Department of health and welfare, § 56- 909 to 39-912. 
1001 et seq. The bracketed insertion at the end of the 

ompiler's Notes. 

The words "this act" refer to S.L. 1965, ch. 



Compiler's Notes section was added by the compiler to conform 

to the 1974 amendment of this section. 



39-1003. Standard serological test denned. — For the purpose of 
sections 39-1001 — 39-1006, Idaho Code, a standard serological test shall be 
a test for syphilis approved by the state board of health and welfare. 

History. 

1943, ch. 26, § 3, p. 53; am. 1974, ch. 23, 
§ 111, p. 633. 



39-1004 HEALTH AND SAFETY 256 

STATUTORY NOTES 

Cross References. 

Board of health and welfare, § 56-1005. 

39-1004. Laboratory report of test. — The laboratory analyzing the 
blood sample shall furnish to the physician offering the sample a detailed 
report of the standard serological test, and including the result of the test. 
If the laboratory is not operated by the state department of health and 
welfare, a copy of such report shall be filed with the department. The report 
shall be held in absolute confidence, and shall not be open to public 
inspection. 

History. 

1943, ch. 26, § 4, p. 53; am. 1974, ch. 23, 
§ 112, p. 633. 

STATUTORY NOTES 

Cross References. act should be in full force and effect on and 

Department of health and welfare, § 56- after July 1, 1974. 
1001 et seq. 
Effective Dates. 

Section 182 of S.L. 1974, ch. 23 provided the 

39-1005. Reports of births and stillbirths to note making of test. 

— In reporting every birth and stillbirth, physicians and others required to 
make such reports shall state on the certificates of birth or death whether a 
standard serological test for syphilis has been made upon a sample of blood 
taken from the woman who bore the child for which a certificate is filed, and 
the approximate date when the sample was taken. The birth or death 
certificate shall not state the result of the test. 

History. 

1943, ch. 26, § 5, p. 53. 

STATUTORY NOTES 

Cross References. 

Reports of births, § 39-241 et seq.; still- 
births, § 39-260. 

39-1006. Penalty for violations. — Any person who violates the 
provisions of sections 39-1001 — ,39-1006[, Idaho Code,] shall be guilty of a 
misdemeanor; provided, however, that every licensed physician or other 
person attending a pregnant or recently delivered woman, who requests 
such sample in accordance with the provisions of sections 39-1001 — 
39- 1006 [, Idaho Code], and whose request is refused, shall not be guilty of a 
misdemeanor. 

History. 

1943, ch. 26, § 6, p. 53. 



257 BASIC DAY CARE LICENSE 39-1102 

STATUTORY NOTES 

Cross References. were added by the compiler to conform to the 

Penalty for misdemeanor when not other- statutory citation style. 

wise provided, § 18-113. 

Compiler's Notes. 
The bracketed insertions in this section 

CHAPTER 11 
BASIC DAY CARE LICENSE 

SECTION. SECTION. 

39-1101. Policy. 39-1112A. Access to information. 

i£"H22- P. efinit : ions - x , 39-1113. Denial, suspension or revocation of 

39-1103. Licensing authority. lWnca 

39-1104. Application for license — Fire safety oni11 , T . .. j ,. 

and health inspections. ^9-1114. Limited applications. 

39-1105. Criminal history checks. 39-1115. Misdemeanor. 

39-1106. Issuance of license — Renewal. 39-1116. Prosecution. 

39-1107. Fees. 39-1117. No liability to state or political sub- 

39-1108. Local option. divisions. 

39-1109. Safety standards. 39-1118. Immunization required. 

39-1110. Health standards. 39-1119. Training requirements. 

39-1111. Rules authorized. 39-1120. Nondelegable duties and responsi- 

39-1112. Visitation. bilities. 

39-1101. Policy. — It is hereby declared to be the policy of this state to 
establish a minimum statewide system for the protection of children in 
daycare facilities. This system is intended to establish minimum standards, 
while still leaving primary responsibility for evaluation and selection of 
daycare services with parents. The minimum standards established by this 
chapter shall not be construed as preempting more stringent regulation by 
county or city ordinance. 

History. 

I.C., § 39-1101, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 1, p. 873. 

STATUTORY NOTES 

Prior Laws. for "day care centers"; and, in the second 

Former §§39-1101 to 39-1104, which com- sentence, substituted "daycare services" for 

pnsed S.L. 1923, ch. 130, §§ 1 to 3, 5, p. 190; « , ' . . 

I.C.A., §§ 38-801 to 38-804, were repealed by Qay Care services - 

S.L. 1951, ch. 138, § 1. Effective Dates. 

Amendments. Section 20 of S.L. 2009, ch. 295 provided 

The 2009 amendment, by ch. 295, in the that the act should take effect on and after 

first sentence, substituted "daycare facilities" January 1, 2010. 

RESEARCH REFERENCES 

C.J.S. — 78 C.J.S., Schools and School 
Districts, § 1. 

39-1102. Definitions. — As used in this chapter: 

(1) "Board" means the Idaho board of health and welfare. 



39-1103 HEALTH AND SAFETY 258 

(2) "Child" means a person less than thirteen (13) years of age. 

(3) "Daycare" means care and supervision provided for compensation 
during part of a twenty-four (24) hour day, for a child or children not related 
by blood, marriage or legal guardianship to the person or persons providing 
the care, in a place other than the child's or children's own home or homes. 

(4) "Daycare center" means a place or facility providing daycare for 
compensation for thirteen (13) or more children. 

(5) "Daycare facility" means a place or facility providing daycare services 
for compensation to seven (7) or more children not related to the provider. 

(6) "Department" means the Idaho department of health and welfare. 

(7) "Employee" means any person working for compensation in a facility 
that provides daycare. 

(8) "Family daycare home" means a home, place, or facility providing 
daycare for six (6) or fewer children. 

(9) "Group daycare facility" means a home, place, or facility providing 
daycare for seven (7) to twelve (12) children. 

(10) "Group size" means the maximum number of children in one (1) 
group or classroom. 

(11) "Mixed age group" means a care group that includes children of 
multiple ages. 

(12) "Ratio" means the number of staff required to supervise a certain 
number of children. 

(13) "Single age group" means a care group that includes children of 
similar age. 

(14) "Training" means continuing education in child development areas 
relating to child care. Training can be acquired through a variety of methods 
including, but not limited to, the viewing of audio visual materials, corre- 
spondence courses, community workshops and in-house training. 

History. 

I.C., § 39-1102, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 2, p. 873. 

STATUTORY NOTES 

Cross References. the section to the extent that a detailed corn- 
Board of health and welfare, § 56-1005. parison is impracticable, adding the defini- 

Prior Laws. tions in subsections (5) and (10) to (14). 

Former § 39-1102 was repealed. See Prior Effective Dates. 

Laws, § 39-1101. Section 20 of S.L. 2009, ch. 295 provided 

Amendments. that the act should take effect on and after 

The 2009 amendment, by ch. 295, rewrote January 1, 2010. 

39-1103. Licensing authority. — The department is hereby autho- 
rized and directed to issue "basic daycare licenses" as provided in this 
chapter. The department is authorized to establish procedures for issuing 
licenses to daycare facilities which shall be maintained and operated in 
conformity with the standards authorized in this chapter. Nothing in this 
chapter shall be construed to limit or restrict the teaching of religious 



259 BASIC DAY CARE LICENSE 39-1104 

doctrines, values, or tenets in a facility licensed under the provisions of this 
chapter. The provisions of this chapter shall not apply to: 

(1) The occasional care of a neighbor's, relative's or friend's child or 
children by a person not ordinarily in the business of providing daycare; 

(2) The operation of a private school or religious school for educational 
purposes for children over four (4) years of age or a religious kindergarten; 

(3) The provision of occasional care exclusively for children of parents 
who are simultaneously in the same building; 

(4) The operation of day camps, programs and religious schools for less 
than twelve (12) weeks during a calendar year or not more often than once 
a week; or 

(5) The provision of care for children of a family within the second degree 
of relationship. 

History. 

I.C., § 39-1103, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 3, p. 873. 

STATUTORY NOTES 

Prior Laws. tuted "business of providing daycare" for 

Former § 39-1103 was repealed. See Prior "business of child care"; and, in subsection (5), 

Laws, § 39-1101. substituted "care for children of a family 

within the second degree of relationship" for 
Amendments. « care f or children of only one (1) immediate 
The 2009 amendment, by ch. 295, in the family in addition to the person's own chil- 
introductory paragraph, in the first sentence, dren." 
deleted "of health and welfare" following "de- 
partment" and substituted "daycare licenses" Effective Dates. 

for "day care licenses," and, in the second Section 20 of S.L. 2009, ch. 295 provided 

sentence, substituted "daycare facilities" for that the act should take effect on and after 

"day care centers"; in subsection (1), substi- January 1, 2010. 

39-1104. Application for license — Fire safety and health inspec- 
tions. — (1) Application. A person who wishes to operate a daycare facility 
shall be a minimum of eighteen (18) years of age, shall submit an 
application on the forms provided by the department, and shall obtain the 
required certificates of inspection as provided herein. 

(2) Inspections. A person who wishes to operate a daycare facility shall 
submit: (a) a certificate of a fire inspection of the proposed center, conducted 
by a fire department or fire district official, establishing compliance with the 
minimum standards specified in section 39-1109, Idaho Code; and (b) a 
health and safety inspection of the proposed facility conducted by a qualified 
inspector as designated by the department, establishing compliance with 
the minimum standards specified in sections 39-1109 and 39-1110, Idaho 
Code. 

(3) Continued compliance and reinspection. Daycare facilities shall at all 
times maintain compliance with the safety and health requirements iden- 
tified in this chapter. The department may cause any daycare facility to be 
reinspected during the term of a license for safety and health compliance as 
determined necessary by the department. No charge for any reinspection 
after the initial inspection in any license period shall be made to the daycare 
facility. 



39-1105 HEALTH AND SAFETY 260 

History. 

I.C., § 39-1104, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 4, p. 873. 

STATUTORY NOTES 

Prior Laws. to achieve an orderly transition pursuant to 

Former § 39-1104 was repealed. See Prior this act, the provisions of this act authorizing 

Laws, § 39-1101. tne promulgation of rules, fees and forms 

. ' , shall be in full force and effect on and after 

Amendments. October 1, 1987, and the remaining portions 

The 2009 amendment, by ch. 295, rewrote f this act shall be in full force and effect on 

the section to the extent that a detailed com- an( j after March 1 1988." 

parison is impracticable. Section 20 of S.L. 2009, ch. 295 provided 

Effective Dates. that the act should take effect on and after 

Section 6 of S.L. 1987, ch. 56 read: "In order January 1, 2010. 

39-1105. Criminal history checks. — (1) The department shall ob- 
tain from the owner a criminal history check on the owners, operators and 
employees of a daycare facility who have direct contact with children, and on 
all other individuals thirteen (13) years of age or older who have unsuper- 
vised direct contact with children or are regularly on the premises of a 
daycare facility. The criminal history check shall include the following for all 
persons subject to the provisions of this section who are eighteen (18) years 
of age or older: 

(a) Statewide criminal identification bureau; 

(b) Federal bureau of investigation (FBI) criminal history; 

(c) National crime information center; and 

(d) Statewide child abuse registry. 

(2) Criminal history checks on those persons under eighteen (18) years of 
age shall include a check of the juvenile justice records of adjudications of 
the magistrate division of the district court, county probation services and 
department records as authorized by the minor and his parent or guardian. 

(3) Notwithstanding the provisions of section 39-1103, Idaho Code, which 
provide for exemption from the provisions of this chapter, any person who 
owns, operates or is employed by a private school for educational purposes 
for children four (4) through six (6) years of age or a private kindergarten 
shall comply with the provisions of this section. 

History. 1994, ch. 453, § 1, p. 1442; am. 2000, ch. 191, 

I.C., § 39-1105, as added by 1987, ch. 56, § 1, p. 472; am. 2009, ch. 295, § 5, p. 873. 
§ 1, p. 92; am. 1992, ch. 90, § 1, p. 279; am. 

STATUTORY NOTES 

Cross References. dren or are regularly on the premises of a 

Bureau of criminal identification, § 67- daycare facility" for "direct contact with chil- 
dren in a day care center"; in subsection 

Amendments. (l)(d), substituted "registry" for "register"; 

The 2009 amendment, by ch. 295, in the and, in subsection (2), deleted "of health and 

introductory paragraph in subsection (1), in- welfare" following "department." 

serted "from the owner," substituted "daycare 

facility" for "day care center," "all other indi- Compiler's Notes. 

viduals thirteen (13) years of age" for "all For national crime information center, see 

volunteers and other individuals twelve (12) http://www.fas.org/irp/agency/doj/fbi/is/ 

years of age," and "direct contact with chil- ncic.htm. 



261 BASIC DAY CARE LICENSE 39-1107 

Effective Dates. that the act should take effect on and after 

Section 20 of S.L. 2009, ch. 295 provided January 1, 2010. 

39-1106. Issuance of license — Renewal. — (1) Upon receipt of the 
application, inspection certificates and the criminal history, the department 
shall, upon a finding of compliance with the minimum standards set forth in 
this chapter, issue a basic daycare license to the applicant. The license shall 
be valid for two (2) years and shall be posted in a conspicuous place at the 
daycare facility. 

(2) The department shall send a renewal application to the owner of the 
daycare facility no later than ninety (90) days prior to the expiration of an 
existing license. The owner shall submit to the department the renewal 
application with the required renewal fee and a criminal history check prior 
to the expiration of the existing license. A complete criminal history check 
shall be provided for any new persons requiring a criminal history check in 
accordance with section 39-1105, Idaho Code. A limited criminal history 
check shall be provided for those persons eighteen (18) years of age or older 
who where [were] previously checked. The limited criminal history check 
shall include: 

(a) Statewide criminal identification bureau; 

(b) National crime information center; and 

(c) Statewide child abuse registry. 

(3) Criminal history checks on those persons under eighteen (18) years of 
age shall include a check of the juvenile justice records of adjudications of 
the magistrate division of the district court, county probation services and 
department records as authorized by the minor and his parent or guardian. 

(4) The department shall maintain a list of all licensees for public use. 

(5) Submission of a renewal application, fee and required criminal history 
check shall entitle the daycare facility owner to continue daycare services, 
subject to action by the department pursuant to section 39-1113, Idaho 
Code. 

History. § 1, p. 92; am. 1992, ch. 90, § 2, p. 279; am. 

I.C., § 39-1106, as added by 1987, ch. 56, 2009, ch. 295, § 6, p. 873. 

STATUTORY NOTES 

Cross References. http://www.fas.org/irp/agency/doj/fbi/is/ 

Bureau of criminal identification, § 67- ncic.htm. 
3003. The bracketed insertion in the introductory 

paragraph in subsection (2) was added by the 
Amendments. compiler to provide the probable intended 

The 2009 amendment, by ch. 295, rewrote word, 
the section to the extent that a detailed com- 
parison is impracticable. Effective Dates. 

Section 20 of S.L. 2009, ch. 295 provided 
Compiler's Notes. that the act should take effect on and after 

For national crime information center, see January 1, 2010. 

39-1107. Fees. — (1) The department shall establish by rule the 
maximum total fee to be assessed for a basic daycare license which shall not 
exceed three hundred twenty-five dollars ($325) for daycare centers with 
more than twenty-five (25) children in attendance at any given time, two 



39-1108 HEALTH AND SAFETY 262 

hundred fifty dollars ($250) for daycare centers with thirteen (13) to 
twenty-five (25) children in attendance at any given time and one hundred 
dollars ($100) for group daycare facilities. Criminal history background 
check fees shall be in addition, but at actual cost. No other fees shall be 
charged for each license period. The department may allocate the fees to 
daycare licensing administration costs as it deems appropriate. 

(2) The department is authorized to utilize Idaho child care program 
funds as otherwise allowed by law to pay for the costs associated with 
licensing of daycare facilities to the extent that fees collected from the 
facilities do not fully cover such costs. It is the intent of the legislature that 
licensing fees and Idaho child care program funds shall fully fund daycare 
facility licensing administration. 

History. 1993, ch. 23, § 1, p. 83; am. 2009, ch. 295, § 7, 

I.C., § 39-1107, as added by 1987, ch. 56, p. 873; am. 2011, ch. 274, § 1, p. 744. 
§ 1, p. 92; am. 1992, ch. 72, § 1, p. 208; am. 

STATUTORY NOTES 

Amendments. ing "licensing of daycare facilities" in the first 

The 2009 amendment, by ch. 295, rewrote sentence, 

the section to the extent that a detailed com- f 

parison is impracticable. Compiler s Notes. 

The 2011 amendment, by ch. 274, in sub- Section 6 of S.L. 1987, ch. 56 read: "In order 

section (1), substituted "three hundred twen- to achieve an orderly transition pursuant to 

ty-five dollars ($325)" for "one hundred seven- £ is act > the Provisions of this act authorizing 

ty-nvedolla^ ^\S^Z^ ^^oa^^ 

than twenty-five (25) children in attendance October 1, 1987, and the remaining portions 

at any given time, two hundred fifty dollars of this act shall be in full force and effect on 

($250) for daycare centers with thirteen (13) an( j a ft er March 1 1988 " 
to twenty-five (25) children in attendance at 

any given time" in the first sentence and Effective Dates. 

inserted "background" following "Criminal Section 20 of S.L. 2009, ch. 295 provided 

history" in the second sentence; and in sub- that the act should take effect on and after 

section (2) deleted "certification and" preced- January 1, 2010. 

39-1108. Local option. — (1) If a city or county, within its respective 
jurisdiction, has adopted an ordinance for regulation and/or licensing of 
daycare services, then the provisions of this chapter shall not apply with 
such city or county unless the ordinance is subsequently repealed. To qualify 
for exemption, regulation of centers must include a criminal history back- 
ground check at least as stringent as the check required in section 39-1105, 
Idaho Code, compliance with safety standards at least as stringent as 
required in section 39-1109, Idaho Code, compliance with health standards 
at least as stringent as required in section 39-1110, Idaho Code, compliance 
with immunization requirements at least as stringent as required in section 
39-1118, Idaho Code, and compliance with training requirements at least as 
stringent as required in section 39-1119, Idaho Code. Cities and counties are 
hereby granted authority and may adopt ordinances for regulation and/or 
licensing of daycare services. 

(2) For purposes of determining whether or not local options are more 
stringent than as required in section 39-1109, Idaho Code, a city or county 
within its respective jurisdiction may, but is not required to, count a child or 
children of a provider for purposes of determining child: staff ratios. 



263 BASIC DAY CARE LICENSE 39-1109 

History. 1993, ch. 23, § 1, p. 83; am. 2009, ch. 295, § 8, 

I.C., § 39-1107, as added by 1987, ch. 56, p. 873; am. 2011, ch. 274, § 2, p. 744. 
§ 1, p. 92; am. 1992, ch. 72, § 1, p. 208; am. 

STATUTORY NOTES 

Amendments. (1), inserted "background" following "criminal 

The 2009 amendment, by ch. 295, in the history" in the second sentence in subsection 

first and last sentences, substituted "licensing q). and added subsection (2). 

of daycare services" for "licensing of day care 

services"; and, in the second sentence, deleted Effective Dates. 

"fire" preceding "safety standards." Section 20 of S.L. 2009, ch. 295 provided 

The 2011 amendment, by ch. 274, desig- that the act should take effect on and after 

nated the existing provisions as subsection January 1, 2010. 

39-1109. Safety standards. — (1) Daycare facilities, owners and oper- 
ators shall comply with the following safety standards in the area of the 
daycare facility in which daycare is provided: 

(a) Adequate fire and smoke alarms; 

(b) A functional telephone located on the daycare premises during the 
hours of operation; 

(c) Adequate fire extinguishers; 

(d) Adequate exits; 

(e) Firearms or other weapons which are stored on the premises of a 
daycare facility must be kept in a locked container that is inaccessible to 
children while daycare attendees are present; 

(f) Pools, hot tubs, ponds and other bodies of water that are on the 
daycare facility premises must provide the following safeguards: 

(i) The area surrounding the body of water must be fenced and locked 
in a manner that prevents access by children and meets the following 
requirements: 

1. The fence must be at least four (4) feet high with no vertical 
opening more than four (4) inches wide, be designed so that a young 
child cannot climb or squeeze under or through the fence, surround 
all sides of the pool and have a gate that is self-closing and that has 
a self-latching mechanism in proper working order out of the reach of 
young children; 

2. If the house forms one (1) side of the barrier for the pool, all doors 
that provide unrestricted access to the pool must have alarms that 
produce an audible sound when the door is opened; 

3. Furniture or other large objects must not be left near the fence in 
a manner that would enable a child to climb on the furniture or other 
large object and gain access to the pool; and 

(ii) If the area surrounding a pool, hot tub, pond or other body of water 

is not fenced and locked, there must be a secured protective covering 

that will not allow access by a child; 

(hi) Wading pools must be empty when not in use; 

(iv) Children must be under direct supervision of at least one (1) adult 

employee while using a pool, hot tub, pond or other body of water; and 

(v) A minimum of a four (4) foot high fence must be present that 

prevents access from the daycare facility premises if the daycare 

premises are adjacent to a body of water; and 



39-1110 HEALTH AND SAFETY 264 

(g) The owner or operator of a daycare facility shall ensure that at all 
times when a child or children are present, at least one (1) adult employee 
on the premises has current certification in pediatric rescue breathing and 
first-aid treatment from a certified instructor. 

(2) No fire standards developed pursuant to this chapter shall be more 
stringent than the standards contained in the International Fire Code, as 
adopted by Idaho. 

(3) At least one (1) adult employee must be present at all times when a 
child or children are in attendance. 

(4)(a) The maximum allowable child:staff ratio shall be a maximum of 
twelve (12) points per staff member using the following point system: 

(i) Each child in attendance under the age of twenty-four (24) months 

shall equal two (2) points. 

(ii) Each child in attendance from twenty-four (24) months to under 

thirty-six (36) months of age shall equal one and one-half (1 1/2) points. 

(iii) Each child in attendance from thirty-six (36) months to under five 

(5) years of age shall equal one (1) point. 

(iv) Each child in attendance from five (5) years to under thirteen (13) 

years of age shall equal one-half (1/2) point. 
(b) Each child in attendance shall be counted by the department for 
purposes of calculating maximum allowable points, counting the number 
of children in attendance and for determining compliance with child: staff 
ratios. 

History. 2002, ch. 86, § 3, p. 195; am. 2009, ch. 295, 

LC., § 39-1109, as added by 1987, ch. 56, § 9, p. 873; am. 2011, ch. 274, § 3, p. 744. 
§ 1, p. 92; am. 1997, ch. 164, § 1, p. 473; am. 

STATUTORY NOTES 

Amendments. must be present at all times during business 

The 2009 amendment, by ch. 295, rewrote hours on the daycare facility premises"; and 

the section to the extent that a detailed com- rewrote subsection (4) 

parison is impracticable. 

The 2011 amendment, by ch. 274, inserted Compiler's Notes. 

"owners and operators" in the introductory See Idaho Administrative Code § 18.01.50 

paragraph in subsection (1); substituted "at f or adoption of 2006 international fire code. 

least one (1) adult employee" for "an adult" in 

paragraph (l)(f)(iv); in paragraph (l)(g), in- Effective Dates. 

serted "when a child or" preceding "children" Section 20 of S.L. 2009, ch. 295 provided 

and inserted "employee"; substituted the cur- that the act should take effect on and after 

rent provisions in subsection (3) for "An adult January 1, 2010. 

39-1110. Health standards. — Daycare facilities shall comply with the 
following health standards: 

(1) Food for use in daycare facilities shall be prepared and served in a 
sanitary manner with sanitized utensils and on surfaces that have been 
cleaned, rinsed and sanitized prior to use to prevent contamination; 

(2) All food that is to be served in daycare facilities shall be stored in such 
a manner that it is protected from potential contamination; 

(3) Diaper changing shall be conducted in such a manner as to prevent 
the spread of communicable diseases; 



265 BASIC DAY CARE LICENSE 39-1111 

(4) Sleeping and play areas, restrooms and fixtures shall be maintained 
in a safe, sanitary condition; 

(5) Children and facility personnel shall be provided with individual or 
disposable towels for handwashing and the handwashing area shall be 
equipped with soap and hot and cold running water; 

(6) The water supply, where the source is other than a public water 
system, must be approved in accordance with the rules adopted by the 
department; 

(7) Medicines, cleaning supplies and other hazardous substances must be 
stored out of reach of children; 

(8) Smoking or alcohol consumption is prohibited on the premises of a 
daycare facility during the daycare facility's hours of operation; and 

(9) Representatives of health and safety inspectors shall not be denied 
access to a daycare facility during hours of operation for purposes of control 
of communicable disease or inspection. 

History. § 1, p. 92; am. 1994, ch. 147, § 1, p. 335; am. 

I.C., § 39-1110, as added by 1987, ch. 56, 2009, ch. 295, § 10, p. 873. 

STATUTORY NOTES 

Amendments. (9), substituted "Representatives of health 

The 2009 amendment, by ch. 295, through- an( j safety inspectors" for "Representatives of 

out the section, substituted "daycare facili- + , Ai . . . v oaU . ^«„ Q ^^«„4. » : na ^^^A 

ties" for "day care facilities" or similar Ian- ^ dlst f ct n€ f th department, inserted 

guage; in subsection (4), inserted "safe"; in 'during hours of operation, and added "or 

subsection (6), inserted "in accordance with inspection." 
the rules adopted" and substituted "depart- . 

ment" for " district board of health"; rewrote Eff ective Dates. 

subsection (8), which formerly read: "A tele- Section 20 of S.L. 2009, ch. 295 provided 

phone or some type of emergency communica- that the act should take effect on and after 

tion system is required"; and, in subsection January 1, 2010. 

39-1111. Rules authorized. — In order to implement the provisions of 
this chapter, the department, in addition to other duties imposed by law, is 
hereby authorized and directed through rulemaking to establish procedures 
necessary to implement the provisions of this chapter including procedure 
for submission of required certificates as provided in sections 39-1109 and 
39-1110, Idaho Code, and to conduct the criminal history check provided in 
section 39-1105, Idaho Code. 

The rulemaking authority granted in this section shall be limited to the 
specific standards and procedures required by this chapter. 

History. 

I.C., § 39-1111, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 11, p. 873. 

STATUTORY NOTES 

Amendments. Effective Dates. 

The 2009 amendment, by ch. 295, rewrote Section 6 of S.L. 1987, ch. 56 read: "In order 

the section to the extent that a detailed com- to achieve an orderly transition pursuant to 

parison is impracticable. this act, the provisions of this act authorizing 



39-1112 HEALTH AND SAFETY 266 

the promulgation of rules, fees and forms Section 20 of S.L. 2009, ch. 295 provided 

shall be in full force and effect on and after that the act should take effect on and after 
October 1, 1987, and the remaining portions January 1, 2010. 
of this act shall be in full force and effect on 
and after March 1, 1988." 

39-1112. Visitation. — Any parent or guardian shall have the absolute 
right to enter the premises of any facility during the period of care for the 
parent's or guardian's child or children. Any failure or refusal to allow entry 
to a parent or guardian may be grounds for suspension or revocation of the 
license, pursuant to section 39-1113, Idaho Code. If a parent or guardian has 
been granted limited or has been denied visitation rights by a court of 
competent jurisdiction, this section shall not confer a right to visitation. 

History. 

I.C., § 39-1112, as added by 1987, ch. 56, 
§ 1, p. 92. 

39-1112A. Access to information. — The department shall make 
available to daycare consumers an informational pamphlet, created by the 
department, to educate daycare consumers with informational tools useful 
in identifying quality daycare. The department may deliver pamphlets 
during direct contact with daycare consumers, or by delivering pamphlets to 
daycare providers during the licensing or renewal process, during inspec- 
tions or through other appropriate means. The pamphlet shall include: 

(1) The importance of parents being vigilant for the safety, emotional 
health and training of their children that cannot be replaced by any other 
institution or individual; 

(2) The basic characteristics of a quality daycare; 

(3) A strong suggestion to parents to inquire about criminal history 
checks for any provider in a family daycare home; 

(4) A link to a department approved website that contains more detailed 
information; and 

(5) A department or other phone number for parents to report unsafe, 
dangerous or harmful activities within the daycare. 

History. 

I.C., § 39-1112A, as added by 2009, ch. 295, 
§ 12, p. 873. 

STATUTORY NOTES 

Effective Dates. that the act should take effect on and after 

Section 20 of S.L. 2009, ch. 295 provided January 1, 2010. 

39-1113. Denial, suspension or revocation of license. — (1) A 

license may be denied, suspended or revoked by the department if the 
department finds that the applicant or licensee does not comply with the 
provisions of this chapter. 

(2) No person who pleads guilty to, has been found guilty of or received a 
withheld judgment for any offense involving neglect or any physical injury 
to, or other abuse of a child including the following offenses or a similar 



267 BASIC DAY CARE LICENSE 39-1113 

provision in another jurisdiction, shall be eligible for a license under the 
provisions of this chapter: 

(a) Felony injury of a child, section 18-1501, Idaho Code. 

(b) The sexual abuse of a child under sixteen years of age, section 
18-1506, Idaho Code. 

(c) The ritualized abuse of a child under eighteen years of age, section 
18-1506A, Idaho Code. 

(d) The sexual exploitation of a child, section 18-1507 or 18-1507A, Idaho 
Code. 

(e) Sexual abuse of a child under the age of sixteen years, section 18-1506, 
Idaho Code. 

(f) Lewd conduct with a child under the age of sixteen years, section 
18-1508, Idaho Code. 

(g) The sale or barter of a child for adoption or other purposes, section 
18-1511, Idaho Code. 

(h) Murder in any degree, section 18-4001 or 18-4003, Idaho Code. 

(i) Assault with intent to murder, section 18-4015, Idaho Code. 

(j) Voluntary manslaughter, section 18-4006, Idaho Code. 

(k) Rape, section 18-6101 or 18-6108, Idaho Code. 

(0 Incest, section 18-6602, Idaho Code. 

(m) Forcible sexual penetration by use of foreign object, section 18-6608, 

Idaho Code. 

(n) Abuse, neglect or exploitation of a vulnerable adult, section 18-1505, 

Idaho Code. 

(o) Aggravated, first degree, second degree and third degree arson, 

sections 18-801 through 18-805, Idaho Code. 

(p) Crimes against nature, section 18-6605, Idaho Code. 

(q) Kidnapping, sections 18-4501 through 18-4503, Idaho Code. 

(r) Mayhem, section 18-5001, Idaho Code. 

(s) Poisoning, section 18-4014 or 18-5501, Idaho Code. 

(t) Possession of sexually exploitative material, section 18-1507A, Idaho 

Code. 

(u) Robbery, section 18-6501, Idaho Code. 

(v) Stalking in the first degree, section 18-7905, Idaho Code. 

(w) Video voyeurism, section 18-6609, Idaho Code. 

(x) Enticing of children, section 18-1509 or 18-1509A, Idaho Code. 

(y) Inducing individuals under eighteen years of age into prostitution, 

section 18-5609, Idaho Code. 

(z) Inducing person under eighteen years of age to patronize a prostitute, 

section 18-5611, Idaho Code. 

(aa) Any felony punishable by death or life imprisonment. 

(bb) Attempt, section 18-306, Idaho Code, conspiracy, section 18-1701, 

Idaho Code, or accessory after the fact, section 18-205, Idaho Code, to 

commit any of the crimes designated in this subsection. 

(3) No person who has pleaded guilty to, been found guilty of or received 
a withheld judgment for any offense involving neglect or any physical injury 
to, or other abuse of a child, including the following offenses or a similar 
provision in another jurisdiction shall be eligible for a license for a period of 
five (5) years under the provisions of this chapter. 



39-1114 HEALTH AND SAFETY 268 

(a) Aggravated assault, section 18-905, Idaho Code. 

(b) Aggravated battery, section 18-907(1), Idaho Code. 

(c) Burglary, section 18-1401, Idaho Code. 

(d) Felony theft, sections 18-2403 and 18-2407(1), Idaho Code. 

(e) Forgery of a financial transaction card, section 18-3123, Idaho Code. 

(f) Fraudulent use of a financial transaction card or number, section 
18-3124, Idaho Code. 

(g) Forgery or counterfeiting, chapter 36, title 18, Idaho Code. 

(h) Misappropriation of personal identifying information, section 18- 

3126, Idaho Code. 

(i) Insurance fraud, section 41-293, Idaho Code. 

(j) Damage to or destruction of insured property, section 41-294, Idaho 

Code. 

(k) Public assistance fraud, section 56-227, Idaho Code. 

(I) Provider fraud, section 56-227A, Idaho Code. 

(m) Attempted strangulation, section 18-923, Idaho Code. 

(n) Attempt, section 18-306, Idaho Code, conspiracy, section 18-1701, 

Idaho Code, or accessory after the fact, section 18-205, Idaho Code, to 

commit any of the crimes designated in this subsection. 

(o) Misdemeanor injury to a child, section 18-1501(2), Idaho Code. 

(4) A daycare facility license may be denied, suspended or revoked by the 
department if the department finds that the daycare facility is not in 
compliance with the standards provided for in this chapter or criminal 
activity that threatens the health or safety of a child. 

(5) A daycare facility license or privilege to operate a family daycare home 
shall be denied or revoked if a registered sex offender resides on the 
premises where daycare services are provided. 

(6) The denial, suspension or revocation of a license under this chapter 
may be appealed to the district court of the county in which the affected 
daycare facility is located and the appeal shall be heard de novo in the 
district court. 

History. 1992, ch. 90, § 3, p. 279; am. 2009, ch. 295, 

I.C., § 39-1113, as added by 1987, ch. 56, § 13, p. 873. 
§ 1, p. 92; am. 1990, ch. 271, § 1, p. 765; am. 

STATUTORY NOTES 

Amendments. tions (2)(n) through (2)(bb) and subsections 

The 2009 amendment, by ch. 295, in the (3) through (5), redesignating former subsec- 

first sentence in subsection (2), inserted tion (3) as subsection (6), and therein substi- 

"pleads guilty to"; in subsection (2)(a), substi- tutin g "daycare facility" for "day care center." 

tuted "Felony injury of a child" for "Injuring a Effective Dates. 

child"; added subsections (2)(e) and (2)(i), and Section 20 of S.L. 2009, ch. 295 provided 

made related redesignations; in subsection that the act should take effect on and after 

(2)(h), inserted "in any degree"; added subsec- January 1, 2010. 

39-1114. Limited applications. — (1) Any person providing daycare 
for four (4) or more children in a family daycare home shall not be required 
to be licensed, but shall comply with the requirements of section 39-1105, 
Idaho Code, for a criminal history check. 



269 BASIC DAY CARE LICENSE 39-1115 

(2) Fire inspections may be conducted by department designated health 
and safety inspectors where necessary. The fire inspection certificate and 
the criminal history check shall be available for inspection on the premises. 

(3) A family daycare home providing care for fewer than seven (7) 
children may elect to comply with the provisions of this chapter and upon a 
finding of compliance by the department, shall receive a basic daycare 
license. 

History. 

I.C., § 39-1114, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 14, p. 873. 

STATUTORY NOTES 

Amendments. Effective Dates. 

The 2009 amendment, by ch. 295, rewrote Section 20 of S.L. 2009, ch. 295 provided 

the section to the extent that a detailed com- that the act should take effect on and after 

parison is impracticable. January 1, 2010. 

39-1115. Misdemeanor. — (1) It shall be a misdemeanor to operate a 
daycare facility within this state without first obtaining a basic daycare 
license from the department or to operate a daycare facility without posting 
a basic daycare license in a conspicuous place. A copy of this chapter shall be 
available on the premises at all times for staff and parents to read on 
request. 

(2) If a daycare facility is found to be operating without a license, the 
licensing agency may grant a grace period of no more than sixty (60) days to 
allow the daycare facility to come into compliance with the provisions of this 
chapter. 

(3) It shall be a misdemeanor to operate a family daycare home caring for 
four (4) or more children without obtaining the criminal history check 
required in section 39-1105, Idaho Code; provided, that in the event of an 
initial citation for violation of the provisions of this subsection, if a person 
makes the applications required within twenty (20) days, the complaint 
shall be dismissed. Operation of a family daycare home caring for four (4) or 
more children after failure to pass a required criminal history check shall be 
a misdemeanor. 

(4) It is a misdemeanor for any person to provide daycare services if such 
person has been found guilty in this state's courts, in any other state's 
courts, or in any federal court, of any offense listed under the provisions of 
section 39-1113, Idaho Code. 

History. § 1, p. 92; am. 1992, ch. 90, § 4, p. 279; am. 

I.C., § 39-1115, as added by 1987, ch. 56, 2009, ch. 295, § 15, p. 873. 

STATUTORY NOTES 

Cross References. Amendments. 

Penalty for misdemeanor when not other- The 2009 amendment, by ch. 295, rewrote 

wise provided, § 18-113. the section to the extent that a detailed com- 



39-1116 HEALTH AND SAFETY 270 

parison is impracticable. that the act should take effect on and after 

Effective Dates. January 1, 2010. 

Section 20 of S.L. 2009, ch. 295 provided 

39-1116. Prosecution. — It shall be the duty of the prosecuting 
attorney of the county in which the daycare facility is located to prosecute 
violations of the provisions of this chapter. 

History. 

I.C., § 39-1116, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 16, p. 873. 

STATUTORY NOTES 

Amendments. Effective Dates. 

The 2009 amendment, by ch. 295, substi- Section 20 of S.L. 2009, ch. 295 provided 

tuted "daycare facility" for "day care center or that the act should take effect on and after 

group day care center." January 1, 2010. 

39-1117. No liability to state or political subdivisions. — The 

issuance of a license or certificate pursuant to this chapter shall not 
constitute a representation of affirmance to any person that the daycare 
facility to which a license is issued is free from risk with regard to the 
standards in this chapter. The state, its political subdivisions or any 
employees or agents of the state or its political subdivisions shall not be 
liable for nor shall a cause of action exist for any loss or damage based upon 
the failure of any person to meet the standards contained in this chapter. 

History. 

I.C., § 39-1117, as added by 1987, ch. 56, 
§ 1, p. 92; am. 2009, ch. 295, § 17, p. 873. 

STATUTORY NOTES 

Cross References. to achieve an orderly transition pursuant to 

Board of health and welfare, § 56-1005. this act, the provisions of this act authorizing 

Amendments. the promulgation of rules, fees and forms 

The 2009 amendment, by ch. 295, in the shall be in full force and effect on and after 

first sentence, substituted "daycare facility'' October 1, 1987, and the remaining portions 

for "day care center" and deleted "or a group of this act shall be in Ml force and effect on 

day care facility to which a certificate is ^ after March x 198g „ 
issued following is issued. ^^ 2Q rf g L ^ ch ^ ^^ 

Effective Dates. that the act should take effect on and after 

Section 6 of S.L. 1987, ch. 56 read: "In order January 1, 2010. 

39-1118. Immunization required. — (1) Within fourteen (14) days of 
a child's initial attendance at any licensed daycare facility, the parent or 
guardian shall provide an immunization record to the operator of the 
daycare facility regarding the child's immunity to certain childhood dis- 
eases. This record, signed by a physician or his representative or another 
licensed health care professional, shall verify that the child has received or 
is in the process of receiving immunizations as specified by the board; or can 
effectively demonstrate, through verification in a form approved by the 
department, immunity gained through prior contraction of the disease. 



271 BASIC DAY CARE LICENSE 39-1120 

Immunizations required and the manner and frequency of their admin- 
istration shall be as prescribed by the board and shall conform to recognized 
standard medical practices in the state. The board shall promulgate 
appropriate rules for the enforcement of the required immunization pro- 
gram and specify reporting requirements of daycare facilities, pursuant to 
the provisions of chapter 52, title 67, Idaho Code. 

(2) Any minor child whose parent or guardian has submitted to officials of 
a licensed daycare facility a certificate signed by a physician licensed by the 
state board of medicine stating that the physical condition of the child is 
such that all or any of the required immunizations would endanger the life 
or health of the child shall be exempt from the provisions of this section. Any 
minor child whose parent or guardian has submitted a signed statement to 
officials of the daycare facility stating their objections on religious or other 
grounds shall be exempt from the provisions of this section. 

History. § 1, p. 333; am. 2009, ch. 295, § 18, p. 873; 

I.C., § 39-1118, as added by 1990, ch. 150, am. 2011, ch. 103, § 1, p. 266. 

STATUTORY NOTES 

Amendments. section (1), substituted "an immunization 

The 2009 amendment, by ch. 295, in the record" for "a statement" in the first sentence 

first paragraph in subsection (1) and in sub- anA ^^^u,,*^ «to^o ^ nn ~A d^^A u„ « 

section (2), substituted "daycare" for "day *? d substituted This record, signed by a 

care"; in the first paragraph in subsection (1), physician or his representative or another 

substituted "representative of a district licensed health care professional, shall verify" 

health department" for "representative of a for «Th is statement shall provide a certificate 

health district, and deleted of health and d -,^„j u„ « ^k,^™™ „.. „ „«~,.«,,«„+,^,r« «* « 

welfare" following "board" and the last occur- ^ ed b ? a ^siaan or a representative of a 

rence of "department"; in the last paragraph dlstnct health department in the second sen- 

in subsection (1), twice deleted "state" and "of tence. 
health and welfare" preceding and following 
"board," respectively, deleted "and regula 



Effective Dates. 



tions" following "rules," and substituted Section 20 of S.L. 2009, ch. 295 provided 

"daycare facilities" for "day care centers." that the act should take effect on and after 

The 2011 amendment, by ch. 103, in sub- January 1, 2010. 

39-1119. Training requirements. — The owner or operator of a day 
care center shall ensure that each employee receives four (4) hours of 
ongoing training every twelve (12) months after the employee's hire date. 

History. 

I.C., § 39-1119, as added by 1993, ch. 416, 
§ 2, p. 1528. 

39-1120. Nondelegable duties and responsibilities. — The depart- 
ment's duties and responsibilities under this chapter are nondelegable. 

History. 

I.C., § 39-1120, as added by 2009, ch. 295, 
§ 19, p. 873. 

STATUTORY NOTES 

Effective Dates. that the act should take effect on and after 

Section 20 of S.L. 2009, ch. 295 provided January 1, 2010. 



39-1201 



HEALTH AND SAFETY 



272 



CHAPTER 12 
CHILD CARE LICENSING REFORM ACT 



SECTION. 

39-1201. 
39-1202. 
39-1203. 
39-1204. 
39-1205. 
39-1206. 
39-1207. 
39-1208. 

39-1209. 
39-1210. 

39-1211. 



Policy. 

Definitions. 

Filing of disclosure reports. 

Form for disclosure report. 

Evaluation of disclosure reports. 

Children's camps. 

Residential schools. 

Standards for children's therapeu- 
tic outdoor programs. 

Standards for children's agencies. 

Standards for children's residential 
care facilities. 

Standards for foster homes — 
Board authorized to imple- 
ment and enforce. 

. Relative foster care — Limited 
variance or waiver. 
39-1212. Application of administrative proce- 
dures act. 



39-1211A 



SECTION. 

39-1213. 
39-1214. 
39-1215. 
39-1216. 
39-1217. 
39-1218. 



39-1219. 
39-1220. 

39-1221. 
39-1222. 



39-1223. 
39-1224. 



Licensing authority. 

Eligibility for license. 

Expiration — Renewal. 

Provisional license. 

Visitation. 

License — Denial — Suspension — 
Revocation — Nonrenewal — 
Hearing. 

Appeal from decision of director. 

Operating without license misde- 
meanor. 

Removal of children. 

Action against unlicensed foster 
home, children's agency, chil- 
dren's therapeutic outdoor 
program or children's residen- 
tial care facility. 

Construction of act. 

Title of act. 



39-1201. Policy. — It is hereby declared to be the policy of this state to 
insure that children of this state shall receive adequate substitute parental 
care in the event of absence, temporary or permanent inability of parents to 
provide care and protection for their children or the parents are seeking 
alternative twenty-four (24) hour long-term care for their children. This 
policy is predicated upon the fact that children are vulnerable, not capable 
of protecting themselves, and when their parents for any reason have 
relinquished their care to others, there arises the possibility of certain risks 
to the children's lives, health and safety which the community as a whole 
must protect against. This requires the offsetting statutory protection of 
review and, in certain instances, licensing or registration. 

The provisions of this chapter shall apply only to those entities specifically 
addressed herein. It is not the intent of the legislature to restrict, regulate, 
or otherwise control private day schools or home schools. 

History. 

1963, ch. 320, § 1, p. 901; am. and redesig. 
1990, ch. 215, § 2, p. 567. 

STATUTORY NOTES 



Cross References. 

Idaho health planning act, § 39-4901 et 
seq. 

Prior Laws. 

Former §§ 39-1201 to 39-1207, which com- 
prised S.L. 1945, ch. 58, §§ 1 to 6, p. 73; 1947, 
ch. 141, §§ 1 to 3, p. 339, were repealed by 
S.L. 1963, ch. 320, § 20. 

Legislative Intent. 

Section 1 of S.L. 1990, ch. 215 read: "It is 
the intent of the legislature of the state of 



Idaho that the existing law governing child 
care facilities in chapter 12, title 39, Idaho 
Code, should be amended to clarify the differ- 
ent types of facilities in Idaho which provide 
twenty-four (24) hour child care for children 
in lieu of parental care. Since the enactment 
of the original language in this chapter in 
1965 [1963], many different types of child care 
facilities have opened in Idaho providing a 
wide range of services for children but creat- 
ing uncertainties whether they are or are not 
covered by the provisions of this chapter. Also, 



273 CHILD CARE LICENSING REFORM ACT 39- 1202 

the Idaho legislature has enacted a separate to apply to day care facilities, day schools, or 
law governing day care facilities for children, to any type of home schools." 
Therefore, it is timely to clarify how to cate- 
gorize different child care providers, to iden- Compiler's Notes. 

tify which care providers are covered by this This section was formerly compiled as § 39- 

chapter and to assure that the provisions of 1208. 
this chapter do not and cannot be interpreted 

OPINIONS OF ATTORNEY GENERAL 

A boarding school which provides 24-hour years is subject to the provisions of this chap- 
group care for children under the age of 18 ter. OAG 87-4. 

39-1202. Definitions. — For the purposes of this chapter: 

(1) "Board" means the Idaho board of health and welfare. 

(2) "Child care" means that care, control, supervision or maintenance of 
children for twenty-four (24) hours a day which is provided as an alternative 
to parental care. 

(3) "Child" means an individual less than eighteen (18) years of age who 
is not enrolled in an institution of higher education. 

(4) "Children's agency" means a person who operates a business for the 
placement of children in foster homes or for adoption in a permanent home 
and who does not provide child care as part of that business. Children's 
agency does not include a licensed attorney or physician assisting or 
providing natural and adoptive parents with legal services or medical 
services necessary to initiate and complete adoptive placements. 

(5) "Children's camp" means a program of child care at a location away 
from the child's home which is primarily recreational and includes the 
overnight accommodation of the child and is not intended to provide 
treatment, therapy or rehabilitation for the child. 

(6) "Children's institution" means a person who operates a residential 
facility for children not related to that person if that person is an individual, 
for the purpose of providing child care. Children's institutions include, but 
are not limited to, foster homes, maternity homes, children's therapeutic 
outdoor programs, or any facilities providing treatment, therapy or rehabil- 
itation for children. Children's institutions do not include: (a) facilities 
which provide only daycare as defined in chapter 11, title 39, Idaho Code; (b) 
facilities and agencies including hospitals, skilled nursing facilities, inter- 
mediate care facilities, and intermediate care facilities for people with 
intellectual disabilities licensed pursuant to chapter 13, title 39, Idaho 
Code; (c) day schools; (d) individuals acting in an advisory capacity, 
counseling a child in a religious context, and providing no child care 
associated with the advice; (e) the occasional or irregular care of a neigh- 
bor's, relative's or friend's child or children by a person not ordinarily 
engaged in child care. 

(7) "Children's residential care facility" means a children's institution, 
excluding: 

(a) Foster homes; 

(b) Residential schools; 

(c) Children's camps. 

No facility expressly excluded from the definition of a children's institution 
is included within the definition of a children's residential care facility. 



39-1202 HEALTH AND SAFETY 274 

(8) "Children's therapeutic outdoor program" is a program which is 
designed to provide behavioral, substance abuse, or mental health services 
to minors in an outdoor setting. This does not include children's camps, 
church camps, or other outdoor programs primarily designed to be educa- 
tional or recreational, such as Boy Scouts, Girl Scouts, 4-H or sports camps. 

(9) "Continued care" means the ongoing placement of an individual in a 
foster home, children's residential care facility, or transitional living place- 
ment who reaches the age of eighteen (18) years but is less than twenty-one 
(21) years of age. 

(10) "Day school" means a public, private, parochial or secular facility 
offering an educational program in which the children leave the facility each 
day at the conclusion of the academic, vocational or school supervised 
activities. 

(11) "Department" means the state department of health and welfare. 

(12) "Director" means the director of the department of health and 
welfare. 

(13) "Foster care" means child care by a person not related to the child, in 
lieu of parental care, in a foster home. 

(14) "Foster home" means a home which accepts, for any period of time, 
with or without compensation, one (1) or more children who are not related 
to the foster parent as members of the household for the purpose of 
providing substitute parental care. 

(15) "Group care" means foster care of a number of children for whom 
child care in a family setting is not available or appropriate, in a dormitory 
or cottage type setting, characterized by activities and discipline of a more 
regimented and less formal nature than found in a family setting. 

(16) "Juvenile detention" is as denned in section 20-502(6), Idaho Code, of 
the juvenile corrections act. 

(17) "Juvenile detention center" means a facility established pursuant to 
sections 20-517 and 20-518, Idaho Code. 

(18) "Person" includes any individual, group of individuals, association, 
partnership, limited liability company or corporation. 

(19) "Placement" means finding a suitable licensed foster home or suit- 
able adoptive home for a child and completing the arrangements for a child 
to be accepted into and adjusted to such home. 

(20) "Relative" means a child's grandparent, great grandparent, aunt, 
great aunt, uncle, great uncle, brother-in-law, sister-in-law, first cousin, 
sibling and half-sibling. 

(21) "Representative" means an employee of the state department of 
health and welfare. 

(22) "Residential facility" means any facility where child care is provided, 
as denned in this section, and which provides day and night accommodation. 

(23) "Residential school" means a residential facility for children which: 

(a) Provides a planned, scheduled, regular, academic or vocational school 
program for students in the elementary, middle or secondary grades as 
defined in section 33-1001, Idaho Code; and 

(b) Provides services substantially comparable to those provided in 
nonresidential public schools where the primary purpose is the education 
and academic pursuits of the students; and 



275 CHILD CARE LICENSING REFORM ACT 39-1203 

(c) Does not seek, receive or enroll students for treatment of such special 
needs as substance abuse, mental illness, emotional disturbance, devel- 
opmental disability or intellectual disability; and 

(d) Is not: 

(i) A college or university; or 

(ii) A children's camp as denned in this section; or 

(iii) A public or private day school in which the children leave the 

facility each day at the conclusion of the academic, vocational and 

school supervised activities. 
(24) "Transitional living" means living arrangements and aftercare ser- 
vices for children, or as continued care, to gain experience living on their 
own in a supportive and supervised environment prior to emancipation. 

History. § 1, p. 564; am. and redesig. 1990, ch. 215, 

1963, ch. 320, § 2, p. 901; am. 1972, ch. 196, § 3, p. 567; am. 2001, ch. 93, § 5, p. 232; am. 

§ 4, p. 483; am. 1974, ch. 23, § 113, p. 633; 2002, ch. 219, § 1, p. 598; am. 2010, ch. 147, 

am. 1987, ch. 56, § 2, p. 92; am. 1990, ch. 214, § 4, p. 314; am. 2010, ch. 235, § 22, p. 542. 

STATUTORY NOTES 

Prior Laws. The 2010 amendment, by ch. 235, in the 

Former § 39-1202 was repealed. See Prior i ast sentence in subsection (6), substituted 

Laws, § 39-1201. "people with intellectual disabilities'' for "the 

Amendments. mentally retarded"; and in paragraph (23)(c), 

This section was amended by two 2010 acts substituted "intellectual disability" for "men- 

which appear to be compatible and have been tal retardation." 

compiled together. 

The 2010 amendment, by ch. 147, added Compiler's Notes. 

subsection (20) and redesignated the subse- This section was formerly compiled as § 39- 

quent subsections accordingly. 1209. 

OPINIONS OF ATTORNEY GENERAL 

A boarding school which provides 24-hour years is subject to the provisions of this chap- 
group care for children under the age of 18 ter. OAG 87-4. 

39-1203. Filing of disclosure reports. — All children's institutions 
except foster homes shall file with the department a disclosure report as 
designed by the department and containing only such information as set 
forth in section 39-1204, Idaho Code. All such disclosure reports shall be 
signed under oath by the administrative employee responsible for operation 
of the children's institution. 

(1) An initial disclosure report shall be filed with the department: 

(a) Within six (6) months of the effective date of this chapter for all 
children's institutions which are providing child care on the effective date 
of this chapter; or 

(b) At least thirty (30) days prior to the acceptance of any child for child 
care. 

(2) An annual update disclosure report shall be filed by all children's 
institutions except foster homes each year within thirty (30) days of the 
anniversary of the filing of the initial disclosure report. The department may 
waive the filing of an annual disclosure report by any children's institution. 



39-1204 HEALTH AND SAFETY 276 

History. 

I.C., § 39-1203, as added by 1990, ch. 215, 
§ 4, p. 567; am. 1990, ch. 214, § 2, p. 564. 

STATUTORY NOTES 

Prior Laws. ter" in subdivision (l)(a) refers to the effective 

Former § 39-1203 was repealed. See Prior date of S.L. 1990, ch. 215, which was effective 
Laws, § 39-1201. July 1, 1990. 

Compiler's Notes. 

The phrase "the effective date of this chap- 

39-1204. Form for disclosure report. — (1) The department shall 
design a form for the initial disclosure report which shall contain only the 
following information: 

(a) The name, address and telephone number(s) for each children's 
agency or children's institution. 

(b) The name(s), address and telephone number(s) of the individual(s) in 
charge at each children's agency or children's institution. 

(c) The number of children that can be accommodated for child care at 
each children's institution and a description of such accommodations. 

(d) Whether and how the children's institution seeks, receives or enrolls 
students for treatment of special needs such as substance abuse, mental 
illness, emotional disturbance, developmental disability, intellectual dis- 
ability, or students who have been identified by the judicial system as 
requiring treatment, therapy, rehabilitation or supervision. 

(e) A complete description of the child care services to be provided at each 
children's institution. 

(f) Whether and how the children's institution expects to receive pay- 
ment, including payment from health insurance carriers, for identified 
treatment needs such as substance abuse, mental illness, emotional 
disturbance, developmental disability, or intellectual disability. 

(g) Whether and how the children's institution represents to the payor of 
the child care services provided by the children's institution that such 
payment may qualify for health insurance reimbursement by the payor's 
carrier or may qualify for tax benefits relating to medical services. 

(h) A description of the educational programs provided at each children's 

institution and their accreditation status. 

(2) The department shall design a form for the annual update disclosure 
report which shall reference the information provided in the initial disclo- 
sure report and shall request identification of any changes in the informa- 
tion provided on the initial report or the previous annual update disclosure 
report. 

History. § 5, p. 567; am. 2002, ch. 219, § 2, p. 598; am. 

I.C., § 39-1204, as added by 1990, ch. 215, 2010, ch. 235, § 23, p. 542. 



277 CHILD CARE LICENSING REFORM ACT 39-1207 

STATUTORY NOTES 

Prior Laws. graphs (l)(d) and (l)(f), substituted "intellec- 

Former § 39-1204 was repealed. See Prior tual disability" for "mental retardation." 



Laws, § 39-1201. 

mendments. 

The 2010 amendment, by ch. 235, in para- appeared in the law as enacted. 



Compiler's Notes. 
Amendments. The letter "s" enclosed in parentheses so 



39-1205. Evaluation of disclosure reports. — The department shall 
review all initial and annual update disclosure reports and shall categorize 
each children's institution, based on the type of care provided, into one (1) of 
the following categories: 

(1) Foster homes; 

(2) Residential schools; 

(3) Children's camps; 

(4) Children's therapeutic outdoor program; or 

(5) Each children's institution not otherwise categorized in subsections 
(1) through (4) of this section, except any day school, shall be designated as 
a "children's residential care facility." 

History. § 6, p. 567; am. 2001, ch. 93, § 6, p. 232; am. 

I.C., § 39-1205, as added by 1990, ch. 215, 2002, ch. 219, § 3, p. 598. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1205 was repealed. See Prior 
Laws, § 39-1201. 

39-1206. Children's camps. — A children's camp which provides child 
care for any one (1) child for more than nine (9) consecutive weeks in any one 
(1) year period shall constitute a children's treatment facility. A children's 
camp which also constitutes a residential school shall be governed under the 
provisions of this chapter as a residential school. A children's camp which 
provides child care for any one (1) child for less than nine (9) consecutive 
weeks in any one (1) year period shall be exempt from the licensure and 
disclosure provisions of this chapter. 

History. 

I.C., § 39-1206, as added by 1990, ch. 215, 
§ 7, p. 567; am. 1990, ch. 214, § 3, p. 564. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1206 was repealed. See Prior 
Laws, § 39-1201. 

39-1207. Residential schools. — (1) Upon receipt of an initial disclo- 
sure report from a children's institution that the department categorizes as 
a residential school, the department shall provide a copy of such initial 
disclosure report to the Idaho department of education. 

(2) The Idaho department of education shall certify to the department 



39-1208 HEALTH AND SAFETY 278 

whether each residential school has been accredited according to the 
accrediting standards promulgated by the Idaho department of education, 
the Idaho state board of education or a secular or religious accrediting 
association recognized by the Idaho department of education. 

(3) If a residential school has been certified as accredited under subsec- 
tion (2) of this section, then the department shall exercise no further 
jurisdiction under this chapter over that accredited residential school so 
long as the accreditation for the residential school remains in effect. 

(4) Upon certification of accreditation, the Idaho department of education 
shall notify the accredited residential school that all future update disclo- 
sure reports or other reports as the Idaho department of education may 
require shall be filed with the Idaho department of education so long as the 
accreditation remains in effect. 

(5) Upon the determination by the Idaho department of education that a 
residential school is no longer accredited, it shall notify the department and 
shall notify the residential school that all future update disclosure reports 
must be filed with the department. 

(6) A residential school that is not certified or accredited pursuant to this 
section or has lost accreditation shall be subject to the jurisdiction of the 
department as a children's treatment facility pursuant to section 39-1210, 
Idaho Code, unless and until accreditation is certified by the Idaho depart- 
ment of education pursuant to this section. 

(7) The department has the authority to postpone for up to one (1) year 
the designation of a nonaccredited residential school as a children's treat- 
ment facility upon receipt of an affidavit under oath signed by a legally 
authorized agent of the nonaccredited residential school that application for 
accreditation has been made to the Idaho department of education, the 
Idaho state board of education or an affiliated accrediting association 
recognized by the Idaho department of education; and the department 
determines that the application is being pursued in good faith. 

History. 

I.C., § 39-1207, as added by 1990, ch. 215, 
§ 8, p. 567. 

STATUTORY NOTES 

Cross References. Prior Laws. 

State board of education, § 33-101. Former § 39-1207 was repealed. See Prior 

State department of education, § 33-125. Laws, § 39-1201. 

39-1208. Standards for children's therapeutic outdoor programs. 

— The board shall have the power and it shall be its duty to promulgate 
appropriate rules necessary to implement and enforce the following stan- 
dards for licensing a children's therapeutic outdoor program: 

(1) Assure the organizational stability of the program, which may require 
incorporation under the laws of Idaho. 

(2) Require from the policymaking authority of the program the promul- 
gation of a statement setting forth the program's purposes and objectives 



279 CHILD CARE LICENSING REFORM ACT 39-1209 

and describing the character and extent of the services which it offers and 
maintains, and the geographical area to be served. 

(3) Require a statement of solvency sufficient to maintain programs and 
personnel necessary to achieve its purposes and objectives and to maintain 
its services. 

(4) Assure such recordkeeping and reporting as may be deemed necessary 
to the program's services and to the department's licensing responsibility. 

(5) Assure the safety and physical care of children for whom the program 
assumes or accepts responsibility. 

(6) Establish the legal status of each child accepted for care and the legal 
authority and responsibility of the program for the child. 

(7) Require a statement of intake policy which shall set forth criteria for 
accepting children for care or service in relation to the program's purposes 
and physical demands. 

(8) The department shall obtain a criminal history check on the owners, 
operators and employees of all children's therapeutic outdoor programs. The 
criminal history check shall be fingerprint based and include the following: 

(a) Statewide criminal identification bureau; 

(b) Federal bureau of investigation (FBI) criminal history; 

(c) National crime information center; and 

(d) Statewide child abuse register. 

History. 

I.C., § 39-1208, as added by 2002, ch. 219, 
§ 4, p. 598. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Bureau of criminal identification, § 67- For national crime information center, see 

3003. http://www.fas.org/irp/agency/doj/fbi/is/ 

Prior Laws ncic.htm. 

Former § 39-1208, which comprised I.C., The lette 5 s "™] enCl ° Sed !? ^ entheses 

§ 39-1208, as added by 1990, ch. 215, § 9, p. so a PP eared m the law as enacted. 
567, was repealed by S.L. 2001, ch. 93, § 7. 

39-1209. Standards for children's agencies. — The board shall have 
the power and it shall be its duty to promulgate appropriate rules and 
regulations necessary to implement and enforce the following standards for 
licensing children's agencies to: 

(1) Assure the organizational stability of children's agencies, which may 
require incorporation under the laws of this state; 

(2) Require from the policy-making authority of the agency a statement 
setting forth the agency's purposes and objectives and describing the 
character and extent of the services which it offers and maintains, and the 
geographical area to be served; 

(3) Require a statement of financial solvency sufficient to maintain 
facilities and personnel necessary to achieve its purposes and objectives and 
to maintain its services. 



39-1210 HEALTH AND SAFETY 280 

History. 

I.C., § 39-1209, as added by 1990, ch. 215, 
§ 10, p. 567. 

STATUTORY NOTES 

Compiler's Notes. ignated as § 39-1202 by § 10 of S.L. 1990, ch. 

Former § 39-1209 was amended and redes- 215. 

39-1210. Standards for children's residential care facilities. — 

The board of health and welfare shall have the power and it shall be its duty 
to promulgate appropriate rules necessary to implement and enforce the 
following standards for licensing a children's residential care facility: 

(1) Assure the organizational stability of the facility, which may require 
incorporation under the laws of Idaho. 

(2) Require from the policy-making authority of the facility the promul- 
gation of a statement setting forth the facility's purposes and objectives and 
describing the character and extent of the services which it offers and 
maintains, and the geographical area to be served. 

(3) Require a statement of solvency sufficient to maintain facilities and 
personnel necessary to achieve its purposes and objectives and to maintain 
its services. 

(4) Assure such recordkeeping and reporting as may be deemed necessary 
to the facility's services and to the department's licensing responsibility. 

(5) Assure the safety and physical care of children for whom the facility 
assumes or accepts responsibility. 

(6) Establish the legal status of each child accepted for care and the legal 
authority and responsibility of the facility for the child. 

(7) Require a statement of intake policy which shall set forth criteria for 
accepting children for care or service in relation to the facility's purposes 
and facilities. 

(8) Provide through observation and collateral inquiry for studies of 
homes into which children may be placed sufficient to enable a judgment 
determining the adequacy of the homes in relation to the needs of the 
children. 

(9) In the case of an institution specializing in maternity care to unmar- 
ried mothers: 

(a) Assure social services on behalf of both the mother and infant; and 

(b) Assure protection of the legal rights and rights to confidential treat- 
ment of minor unmarried mothers and their children which shall be 
subject to disclosure according to chapter 3, title 9, Idaho Code. 

(10) The department shall obtain a criminal history check on the owners, 
operators and employees of all children's residential care facilities. The 
criminal history check shall include the following: 

(a) Statewide criminal identification bureau; 

(b) Federal bureau of investigation (FBI) criminal history; 

(c) National crime information center; and 

(d) Statewide child abuse register. 



281 



CHILD CARE LICENSING REFORM ACT 



39-1211 



History. am. 1990, ch. 215, § 11, p. 567; am. 2001, ch. 

1963, ch. 320, § 3, p. 901; am. 1980, ch. 325, 93, § 8, p. 232. 
§ 3, p. 820; am. 1990, ch. 213, § 40, p. 480; 



STATUTORY NOTES 



Cross References. 

Board of health and welfare, § 56-1005. 
Bureau of criminal identification, § 67- 
3003. 

Amendments. 

This section was amended by two 1990 acts, 
ch. 213, § 40, effective July 1, 1993 and ch. 
215, § 11, effective July 1, 1990, which, ex- 
cept for one instance in subdivision (8), do not 
conflict and have been compiled together. 

The amendment 1990, by ch. 213, § 40, 
enclosed the subdivision designations (1) — 
(9) in parentheses; at the end of subdivision 
(8) substituted a semicolon for a comma and 
in subdivision (9) in paragraph (b) added 
"which shall be subject to disclosure according 
to chapter 3, title 9, Idaho Code" following 
"their children". 

The 1990 amendment, by ch. 215, § 11, in 
the section heading substituted "treatment 
facilities" for "agencies and children's institu- 
tions — Board to implement and enforce"; in 
the introduction substituted "a" for "children's 
agencies and" following "for licensing", and 
substituted "treatment facility" for "institu- 
tion" at the end of the paragraph; in subdivi- 
sions (1), (2), (4) — (7) substituted "facility" 



for "agency's" each time it appears; in subdi- 
vision (3) substituted "a statement of sol- 
vency" for "evidence of income and resources" 
following "Require"; at the end of subdivision 
(6) substituted "the child" for "him"; in subdi- 
vision (8) at the end substituted a period for ", 
and"; in subdivision (9) in paragraph (a) sub- 
stituted a semicolon for a comma following 
"infant"; and added subdivision (10). 

Compiler's Notes. 

For national crime information center, see 
http://www.fas.org/irp/agency/doj/fbi/is/ 
ncic.htm. 

The letters "FBI" enclosed in parentheses 
so appeared in the law as enacted. 

Effective Dates. 

Section 11 of S.L. 1980, ch. 325 declared an 
emergency. Approved April 2, 1980. 

Section 111 of S.L. 1990, ch. 213 as 
amended by § 16 of S.L. 1991, ch. 329 pro- 
vided that §§3 through 45 and 48 through 
110 of the act should take effect July 1, 1993 
and that §§ 1, 2, 46 and 47 should take effect 
July 1, 1990. 



39-1211. Standards for foster homes — Board authorized to im- 
plement and enforce. — The board of health and welfare shall have the 
power, and it shall be its duty to promulgate appropriate rules necessary to 
implement and enforce the following standards for licensing private foster 
homes pursuant to this chapter. Such rules shall: 

(1) Require evidence of income and resources sufficient to maintain the 
home and the services offered. 

(2) Require such recordkeeping and reporting regarding children's status 
and progress as may be deemed necessary. 

(3) Assure the safety and adequate physical care of children under care. 

(4) Require that foster parents be physically and emotionally suited to 
care for unrelated children and to deal with problems presented by children 
away from their own homes and own parents and shall require a criminal 
background check. 

Provided, however, nothing in this chapter shall be construed to cover the 
occasional or irregular care of a neighbor's, relative's or friend's child or 
children by a person not ordinarily engaged in child care. 



History. 

1963, ch. 320, § 4, p. 901; am. 1972, ch. 196, 
§ 5, p. 483; am. 1974, ch. 23, § 114, p. 633; 



am. 1987, ch. 56, § 3, p. 92; am. 1990, ch. 215, 
§ 12, p. 567; am. 2001, ch. 93, § 9, p. 232. 



39-1211A HEALTH AND SAFETY 282 

STATUTORY NOTES 

Cross References. this act take effect from and after July 1, 

Board of health and welfare, § 56-1005. 1972. 

Effective Dates. 

Section 21 of S.L. 1972, ch. 196 provided 

39- 12 11 A. Relative foster care — Limited variance or waiver. — 

(1) A relative providing foster care for a related child pursuant to chapter 
16, title 16, Idaho Code, must be licensed in accordance with this chapter. 

(2) Notwithstanding the provisions of subsection (1) of this section, the 
department may expedite placement with a relative, issue a foster care 
license or grant a limited variance or waiver of a licensing standard or 
requirement if, in the department's judgment, the health and safety of the 
related child is not thereby endangered. 

(3) If the department grants a limited variance or waiver of a licensing 
standard or requirement to the child's relative pursuant to this section, the 
department shall document the grounds for granting the limited variance or 
waiver and the reasons the limited variance or waiver will not compromise 
the related child's safety and health. 

(4) A limited variance or waiver of a licensing standard or requirement 
granted to a child's relative pursuant to this section shall be reviewed by the 
department for continuing compliance, need, and approval at regular 
intervals, subject to the provisions of section 39-1113, Idaho Code. 

(5) The board shall promulgate appropriate rules necessary to implement 
and enforce the provisions of this section. 

History. 

I.C., § 39-1211A, as added by 2010, ch. 147, 
§ 5, p. 314. 

39-1212. Application of administrative procedures act. — Actions 
of the department relating to adoption of rules and regulations, notice, 
hearings, appeals from decisions of the department or the director, and 
review shall be governed by the provisions of chapter 52, title 67, Idaho 
Code, the administrative procedures act. 

History. 

I.C., § 39-1212, as added by 1990, ch. 215, 
§ 14, p. 567. 

STATUTORY NOTES 

Prior Laws. 633; am. 1981, ch. 117, § 1, p. 200, was 

Former § 39-1212, which comprised 1963, repealed by S.L. 1990, ch. 215, § 13. 
ch. 320, § 5, p. 901; am. 1974, ch. 23, § 115, p. 

39-1213. Licensing authority. — (a) The board of health and welfare 
is hereby authorized and directed to establish procedures for licensing foster 
homes, children's agencies, children's therapeutic outdoor programs and 
children's residential care facilities which are maintained and operated in 
conformity with the rules and standards authorized herein. Such proce- 



283 CHILD CARE LICENSING REFORM ACT 39-1215 

dures shall include the manner and form for making application for license, 
investigation upon application and notice of decision. 

(b) It is recognized that children's agencies may have their own procedure 
for approval of foster homes affiliated with their program. Any foster home 
which has been approved by a licensed children's agency shall be exempt 
from the licensing provisions of this chapter, provided that the standards for 
approval by such agency are no less restrictive than rules and standards 
established by the board of health and welfare, and provided further that 
such children's agency is maintained and operated in conformity with rules 
and standards of the board of health and welfare. The board of health and 
welfare may promulgate rules necessary to implement the provisions of this 
section. 

(c) The board of health and welfare is hereby authorized to establish rules 
allowing for continued care for appropriate individuals eighteen (18) to 
twenty-one (21) years of age who have been receiving services by, through, 
or with the authorization of the department of health and welfare or the 
department of juvenile corrections prior to their eighteenth birthday. 

History. am. 1990, ch. 215, § 15, p. 567; am. 2001, ch. 

1963, ch. 320, § 6, p. 901; am. 1974, ch. 23, 93, § 10, p. 232; am. 2002, ch. 219, § 5, p. 
§ 116, p. 633; am. 1980, ch. 302, § 1, p. 780; 598. 

STATUTORY NOTES 

Cross References. Department of juvenile corrections, § 20- 

Board of health and welfare, § 56-1005. 503. 

JUDICIAL DECISIONS 

Day Care Business. of a day care business when no statute man- 

A county may not, as a part of its zoning dates such licensing. County of Ada v. Hill, 

scheme, require an applicant for a conditional no Idaho 289, 715 P.2d 959 (1986). 
use permit to obtain a license for the conduct 

39-1214. Eligibility for license. — Any foster home, children's agency, 
children's therapeutic outdoor program or children's residential care facility 
which applies for a license in the manner and form prescribed by the board 
of health and welfare and is found upon investigation by the department to 
be established in conformity with the rules and standards established by the 
department under the authority conferred herein shall be licensed for a 
period of one (1) year. 

History. § 16, p. 567; am. 2001, ch. 93, § 11, p. 232; 

1963, ch. 320, § 7, p. 901; am. 1990, ch. 215, am. 2002, ch. 219, § 6, p. 598. 

STATUTORY NOTES 

Cross References. 

Board of health and welfare, § 56-1005. 

39-1215. Expiration — Renewal. — If a licensee desires to apply for a 
renewal of its license, an application for renewal shall be filed sixty (60) days 



39-1216 HEALTH AND SAFETY 284 

prior to the expiration date of the license in force. When such application for 
renewal has been made in the proper manner and form, the existing license 
shall, unless officially revoked, remain in force until the department has 
acted on the application for renewal. 

History. 

1963, ch. 320, § 8, p. 901. 

39-1216. Provisional license. — Upon initial investigation, should an 
applicant for a license be unable to meet a standard because of conditions 
that are unlikely to endure beyond six (6) months from the date of such 
investigation, the department may, if in its judgment the health and safety 
of any child is not thereby endangered, issue a provisional license for a 
period not to exceed six (6) months. No more than one (1) provisional license 
shall be issued to the same foster home, children's agency, children's 
therapeutic outdoor program or children's residential care facility in any 
twelve (12) month period. 

History. § 17, p. 567; am. 2001, ch. 93, § 12, p. 232; 

1963, ch. 320, § 9, p. 901; am. 1990, ch. 215, am. 2002, ch. 219, § 7, p. 598. 

39-1217. Visitation. — For the purpose of determining whether every 
licensed foster home, licensed children's agency, licensed children's thera- 
peutic outdoor program and licensed children's residential care facility 
consistently maintains conformity with the standards established under the 
authority conferred herein, the department, through an authorized repre- 
sentative, shall visit each such home and facility as often as it deems 
necessary or desirable, but in any event at intervals not to exceed twelve 
(12) months. 

History. 215, § 18, p. 567; am. 2001, ch. 93, § 13, p. 

1963, ch. 320, § 10, p. 901; am. 1990, ch. 232; am. 2002, ch. 219, § 8, p. 598. 

39-1218. License — Denial — Suspension — Revocation — 
Nonrenewal — Hearing. — (1) Any license issued pursuant to this 
chapter may be denied, suspended, revoked or not renewed, by notice in 
writing by the director or his authorized representative served upon the 
applicant or licensee by registered or certified mail, setting forth the reasons 
therefor, if upon investigation it is found that the licensee has failed or 
refused to comply with any of the provisions of this chapter or with any of 
the rules, regulations or standards established pursuant to this chapter. 

(2) Within fifteen (15) days from receipt of notice of grounds for denial, 
suspension, revocation or nonrenewal, the applicant or licensee may serve 
upon the director by registered or certified mail, a written request for 
hearing. Upon receipt of such request, the director shall fix a date for 
hearing, which date shall not be more than thirty (30) days from receipt of 
the request and shall give the applicant or licensee at least fifteen (15) days' 
notice of said hearing date. 

(3) If no request for hearing is made within the time specified, the license 
shall be deemed denied, suspended or revoked. The department shall notify 



285 CHILD CARE LICENSING REFORM ACT 39-122 1 

the applicant or licensee of the decision of the director or his authorized 
representative within thirty (30) days after conclusion of the hearing. 

History. 

1963, ch. 320, § 11, p. 901; am. 1974, ch. 23, 
§ 117, p. 633; am. 1990, ch. 215, § 19, p. 567. 

39-1219. Appeal from decision of director. — If an applicant or 
licensee feels aggrieved by a decision rendered as a result of a hearing, as 
provided in section 39-1218, Idaho Code, appeal may be taken to the district 
court of the county in which the group or foster home, facility, program or 
agency is located, in the manner and form as provided in section 39-1212, 
Idaho Code, provided, however, the filing of notice of appeal shall not, unless 
otherwise ordered, stay the proceedings of the director. 

History. § 118, p. 633; am. 1990, ch. 215, § 20, p. 567; 

1963, ch. 320, § 12, p. 901; am. 1974, ch. 23, am. 2002, ch. 219, § 9, p. 598. 

STATUTORY NOTES 

Effective Dates. act should be in full force and effect on and 

Section 182 of S.L. 1974, ch. 23 provided the after July 1, 1974. 

39-1220. Operating without license misdemeanor. — Any person or 
persons who operate a foster home, children's agency, children's therapeutic 
outdoor program or children's residential care facility, within this state, 
without first obtaining a license as provided in this chapter shall be guilty 
of a misdemeanor. However, in the event of an initial citation for violation of 
the provisions of this section, if a person makes the application required 
within thirty (30) days, the complaint shall be dismissed. The penalty for 
violation of the provisions of this section shall be three hundred dollars 
($300) for each day of a continuing violation, which penalty shall accrue 
from thirty (30) days following the initial notice of violation in the event of 
a finding of violation. 

History. 215, § 21, p. 567; am. 2001, ch. 93, § 14, p. 

1963, ch. 320, § 13, p. 901; am. 1990, ch. 232; am. 2002, ch. 219, § 10, p. 598. 

39-1221. Removal of children. — Any child or children receiving child 
care in a children's residential care facility or children's therapeutic outdoor 
program found to be operating without a license may be removed from such 
home, agency or institution upon order of the magistrate court of the county 
in which the child is receiving care and returned to the child's own home, or 
placed in the custody of the department if the child's custodial parent is not 
available. The prosecuting attorneys of the several counties shall represent 
the department at all stages of the proceedings before the magistrate court. 
The magistrate court shall retain jurisdiction relative to child custody 
pursuant to the provisions of this section. In the event that the prosecuting 
attorney in the county where the alleged violation occurred fails or refuses 
to act within sixty (60) days of notification of the violation, the attorney 
general is authorized to prosecute violations under this chapter. 



39-1222 HEALTH AND SAFETY 286 

History. 567; am. 2001, ch. 93, § 15, p. 232; am. 2002, 

1963, ch. 320, § 14, p. 901; am. 1990, ch. ch. 219, § 11, p. 598. 
214, § 4, p. 564; am. 1990, ch. 215, § 22, p. 

STATUTORY NOTES 

Cross References. 

Attorney general, § 67-1401 et seq. 

39-1222. Action against unlicensed foster home, children's 
agency, children's therapeutic outdoor program or children's resi- 
dential care facility. — Notwithstanding the existence or pursuit of any 
other remedy, the department shall, upon showing good cause to the 
prosecuting attorney who shall represent the department in the proceeding, 
maintain an action in the name of the state for injunction or other process 
against a person as denned herein who shall hereafter operate or maintain 
any foster home, children's agency, children's therapeutic outdoor program 
or children's residential care facility without first having secured a license 
pursuant to the provisions of this chapter. Upon a finding that the safety of 
children at a foster home, children's agency, children's therapeutic outdoor 
program or children's residential care facility is endangered, the depart- 
ment has the authority to immediately revoke a license. 

History. 215, § 23, p. 567; am. 2001, ch. 93, § 16, p. 

1963, ch. 320, § 15, p. 901; am. 1990, ch. 232; am. 2002, ch. 219, § 12, p. 598. 

STATUTORY NOTES 

Compiler's Notes. without such invalid or ineffective section, 
Section 16 of S.L. 1963, ch. 320 read: "If any subsection, subdivision, paragraph, sentence, 
section, subsection, subdivision, paragraph, part or provision, and this act as a whole shall 
sentence, part or provision of this act shall be not be declared invalid by reason of the fact 
found to be invalid or ineffective by any court that one or more sections, subsections, subdi- 
it shall be conclusively presumed that this act visions, paragraphs, sentences, parts or pro- 
would have been passed by the legislature visions may be so found invalid." 

39-1223. Construction of act. — This act shall be liberally construed 
to the end that the legislative policy expressed herein is attained. 

History. 

1963, ch. 320, § 17, p. 901. 

STATUTORY NOTES 

Compiler's Notes. 320, which is codified as §§ 39-1201, 39-1202, 

The words "this act" refer to S.L. 1963,, ch. 39-1210, 39-1211, and 39-1213 to 39-1224. 

39-1224. Title of act. — This act shall be known and cited as the "Child 
Care Licensing Reform Act/' and the caption for chapter 12, title 39, Idaho 
Code, shall so designate. 

History. 

1963, ch. 320, § 18, p. 901; am. 1987, ch. 56, 
§ 4, p. 92; am. 1990, ch. 215, § 24, p. 567. 



287 



HOSPITAL LICENSES AND INSPECTION 



39-1224 



STATUTORY NOTES 



Compiler's Notes. 

The words "this act" refer to S.L. 1963, ch. 
320, which is codified as §§ 39-1201, 39-1202, 
39-1210, 39-1211, and 39-1213 to 39-1224. 

Effective Dates. 

Section 19 of S.L. 1963, ch. 320 provided 
that the act should take effect from and after 
September 1, 1963. 



Section 6 of S.L. 1987, ch. 56 read: "In order 
to achieve an orderly transition pursuant to 
this act, the provisions of this act authorizing 
the promulgation of rules, fees and forms 
shall be in full force and effect on and after 
October 1, 1987, and the remaining portions 
of this act shall be in full force and effect on 
and after March 1, 1988." 



CHAPTER 13 
HOSPITAL LICENSES AND INSPECTION 



SECTION. 

39-1301. Definitions. 

39- 130 LA. Waivers for certified family homes 
— Definitions. 

39-1301B. Nursing facility conversions. 

39-1301C. Deemed status of hospice agency 
and its hospice home — No 
Idaho license or certification 
required. 

39-1302. Purpose. 

39-1303. Licensure. 

39- 1303a. Definition of services and regula- 
tion of facilities in preceding 
section. 

39- 1303b. Agreements for allocation of ser- 
vices between neighboring 
hospitals. 

39-1303c. Curtailment of required services. 

39- 1303d. [Amended and redesignated.] 

39-1304. Application for license. 

39-1305. Issuance and renewal of license. 

39-1306. Denial or revocation of license — 
Hearings and review. 

39-1307. Rules, regulations, and enforce- 
ment. 

39-1307A. Food purchasing and storage. 

39-1307B. Minimum staffing requirements. 

39-1308. Effective date of regulations. 

39-1309. Inspections and consultations. 

39-1310. Information. 

39-1311. Functions of advisory hospital coun- 
cil. [Repealed.] 

39-1312. Penalty for operating a facility or 
agency without license. 

39-1313. Injunction to prevent operation 
without license. 

39-1314. Separability. 

39-1315 — 39-1317. [Amended and redesig- 
nated.] 

39-1318. Hospital boards — Duty to acquire, 
construct, improve and main- 
tain public hospitals and med- 
ical clinics. 

39-1319. Definitions. 

39-1320. Organization of hospital district — 
Petition — Contents — Filing. 

39-1321. Joint districts in one or more coun- 
ties. 



SECTION. 

39-1322. Notice of time of hearing on petition 

— Order fixing boundaries — 
Appeal. 

39-1323. Election in proposed district — No- 
tice — Qualifications of voters. 

39-1324. Election — Manner of conducting. 

39-1325. Election results — Canvass and cer- 
tification — Order establish- 
ing district. 

39-1325A. Petitions for dissolution of hospi- 
tal districts. 

39-1325B. Nonfunctioning district. 

39-1325C. Effect of dissolution. 

39-1326. Board of trustees of district — Qual- 
ifications of members. 

39-1327. Oaths and bonds of board members. 

39-1328. Organization of board — Seal — 
Duties of treasurer — Com- 
pensation of members — Fi- 
nancial statement. 

39-1329. Meetings — Quorum — Vacancies. 

39-1330. Biennial election of board members 

— Terms of office. 
39-1330A, 13-1330B. [Repealed.] 
39-1331. Powers and duties of board. 
39-1332. Annual statement of valuation of 

taxable property. 

39-1333. Levy and collection of taxes — Ini- 
tial financing. 

39-1334. Additional tax levies. 

39-1335. Tax levy to pay interest on bonds 
and other obligations. 

39-1336. Maturing indebtedness a consider- 
ation in annual levies. 

39-1337. Tax rate — Certification — Levy 
and collection. 

39-1338. Bond issues authorized — Form 
and terms. 

39-1339. Creation of indebtedness for works, 
improvements or equipment 

— Election on proposed in- 
debtedness — Indebtedness or 
liability without election. 

39-1340. Notices of election on proposed in- 
debtedness. 

39-1341. Conduct of election for proposed in- 
debtedness. 



39-1301 



HEALTH AND SAFETY 



288 



SECTION. 

39-1342. Indebtedness incurred upon favor- 
able vote — Resubmission of 
proposition not received favor- 
ably. 

39-1343. Officials and sureties liable on bond. 

39-1344. Taxes levied a lien — Collection. 

39-1345. Due and delinquent dates of taxes 
assessed. 

39-1346. Treasurer of hospital district — Du- 
ties. 

39-1347. Warrants and drafts — Payment. 

39-1348. Warrants — Inability to pay — 
Indorsement. 

39-1349. Bulletin board — Notices posted for 
presentation of district war- 
rants. 

39-1350. Notice warrants will be paid on pre- 
sentation. 

39-1351. Interest on warrants — Cessation 
thirty days from posting no- 
tice. 

39-1352. Notation of interest amount on war- 
rant. 

39-1353. Power to issue and sell tax anticipa- 
tion notes or bonds. 

39- 1353a. Practice of medicine not autho- 
rized. 

39-1354. Annexation of territory not having a 
tax supported hospital — Pe- 
titions and signatures — Elec- 
tion. 

39-1355. Existing tax supported hospitals 
may consolidate. 

39-1356. Equalization of levy between con- 
solidating hospitals. 



SECTION. 

39-1356A. Hospital districts in more than 
one county. [Repealed.] 

39-1357. Adjustment of boundary lines or 
consolidation of hospital dis- 

39-1358 — 39-1389. [Repealed.! 

39-1390. Reports to law enforcement agen- 
cies of certain types of inju- 
ries. 

39-1391. Emergency treatment without ad- 
mission — Liability. 

39-1391a. Emergency treatment not to con- 
stitute admission. 

39-1391b. Emergency treatment by hospital 
not required — Discrimina- 
tion prohibited. 

39- 1391c. Immunity from civil liability. 

39-1392. Statement of policy. 

39-1392a. Definitions. 

39- 1392b. Records confidential and privi- 



39-1392c. 
39-1392d 



39-1392e 

39-1392f. 
39-1393. 



39-1394. 
39-1395. 



Immunity from civil liability. 
Property of health care organiza- 
tion. 
Limited exceptions to privilege 

and confidentiality. 
Peer review. 

Notification of professional review 
action imposed upon physi- 
cian or emergency medical 
services personnel. 
Patient care records — Retention — 

Authentication. 
Practice of podiatry — Medical staff 
membership. 



39-1301. Definitions. — For purposes of this chapter the following 
definitions will apply: 

(a) "Hospital" means a facility which: 

(1) Is primarily engaged in providing, by or under the supervision of 
physicians, 

(a) concentrated medical and nursing care on a twenty-four (24) hour 
basis to inpatients experiencing acute illness; and 

(b) diagnostic and therapeutic services for medical diagnosis and 
treatment, psychiatric diagnosis and treatment, and care of injured, 
disabled, or sick persons; and 

(c) rehabilitation services for injured, disabled, or sick persons; and 

(d) obstetrical care. 

(2) Provides for care of two (2) or more individuals for twenty-four (24) or 
more consecutive hours. 

(3) Is staffed to provide professional nursing care on a twenty-four (24) 
hour basis. 

(b) "Nursing facility" (nursing home) means a facility whose design and 
function shall provide area, space and equipment to meet the health needs 
of two (2) or more individuals who, at a minimum, require inpatient care 
and services for twenty-four (24) or more consecutive hours for unstable 
chronic health problems requiring daily professional nursing supervision 



289 HOSPITAL LICENSES AND INSPECTION 39-1301 

and licensed nursing care on a twenty-four (24) hour basis, restorative, 
rehabilitative care, and assistance in meeting daily living needs. Medical 
supervision is necessary on a regular, but not daily, basis. 

(c) "Intermediate care facility for people with intellectual disabilities 
(ICF/ID)" means a nonnursing home facility, designed and operated to meet 
the unique educational, training, habilitative and medical needs of the 
developmentally disabled through the provision of active treatment. 

(d) "Person" means any individual, firm, partnership, corporation, com- 
pany, association, or joint stock association, and the legal successor thereof. 

(e) "Government unit" means the state, or any county, municipality, or 
other political subdivision, or any department, division, board or other 
agency thereof. 

(f) "Licensing agency" means the department of health and welfare. 

(g) "Board" means the board of health and welfare. 

(h) "Physician" means an individual licensed to practice medicine and 
surgery by the Idaho state board of medicine or the Idaho state board of 
podiatry. 

(i) "Authorized provider" means an individual who is a nurse practitioner 
or clinical nurse specialist, licensed to practice in Idaho in accordance with 
the Idaho nurse practice act; or a physician's assistant, licensed by the Idaho 
state board of medicine. 

(j) "Hospice house" means a facility that is owned and operated by a 
medicare certified hospice agency for the purpose of providing inpatient 
hospice services consistent with 42 CFR 418.110. 

History. § 1, p. 162; am. 1992, ch. 134, § 1, p. 421; am. 

1947, ch. 133, § 1, p. 324; am. 1974, ch. 23, 2000, ch. 274, § 5, p. 799; am. 2010, ch. 84, 

§ 119, p. 633; am. 1980, ch. 159, § 1, p. 333; § i p . i 63; am . 2 010, ch. 235, § 24, p. 542. 
am. 1981, ch. 32, § 1, p. 51; am. 1992, ch. 56, 

STATUTORY NOTES 

Cross References. taining, or restoring health or minimizing the 

Hospital Liability Trust Act, § 41-3701 et effects of illness or disability"; and redesig- 

q ' nated former subsections (f) through (j) as 

Amendments. subsections (e) through (i). 

This section was amended by two 1992 acts The 1992 amendment, by ch. 134, added "or 

^SSi&^ compatible and have been ^ Idaho ^ board rf podiatry „ at ^ end 

The 1992 amendment, by ch. 56, § 1, in the of subsection (j) [now (h)]. 

introductory sentence substituted "chapter" This section was amended by two 2010 acts 

for "act"; in subsection (d) added "unique" which appear to be compatible and have been 

following "designed and operated to meet compiled together. 

the"; at the end of subsection (d) added Th e 2010 amendment, by ch. 84, added 

through the provision of active treatment"; subsection (j). 

deleted former subsection (e) which read: The 2010 amendment, by ch. 235, substi- 

Propnetary home health agency 5 means a tuted "people with intellectual abilities" for 

private or investor owned, profit-making "the mentally retarded" in subsection (c). 
agency which provides multiple service 

health care programs. These programs must Compiler's Notes. 

be physician directed and must include The nurse practice act, referred to in sub- 
skilled nursing and at least one other service section (i), does not exist. Provisions relating 
and be centrally administered and coordi- to the licensing and governance of nurses can 
nated. The services are provided in the pa- be found in chapter 14, title 54, Idaho Code, 
tient's place of residence to the patient or his The words enclosed in parentheses so ap- 
family for the purpose of promoting, main- peared in the law as enacted. 



39-1301A HEALTH AND SAFETY 290 

JUDICIAL DECISIONS 

Cited in: Greater Boise Auditorium Dist. v. 
Royal Inn, 106 Idaho 884, 684 R2d 286 (1984). 

RESEARCH REFERENCES 

Am. Jur. — 40AAm. Jur. 2d, Hospitals and C.J.S. — 41 C.J.S., Hospitals, § 1 et seq. 

Asylums, § 1 et seq. 

39- 1301 A. Waivers for certified family homes — Definitions. — 

(1) Chapter 13, title 39, Idaho Code, shall not have the effect of preventing 
two (2) persons in need of the care described in section 39- 130 1(b), Idaho 
Code, from residing in a certified family home when: 

(a) Each of the persons has given a written statement to the department 
requesting the arrangement and each person making the request is 
informed, not coerced, and competent; and 

(b) The department finds the arrangement safe and effective; and 

(c) The department issues a written waiver permitting the arrangement. 

(2) The department shall use negotiated rulemaking when promulgating 
rules to carry out the provisions of this section to ensure a person's ability 
to choose services and service provider is considered. 

(3) The department shall revoke any waiver granted pursuant to this 
section where it is determined there is a threat to the life or safety of either 
person or where one (1) of the persons leaves the living arrangement 
permanently or notifies the department in writing that he does not wish to 
reside in the setting with the other individual. Any waiver granted under 
this section shall be reviewed annually. 

History. § 1, p. 795; am. and redesig. 2000, ch. 274, 

I.C., § 39-1301a, as added by 1998, ch. 238, § 6, p. 799. 

STATUTORY NOTES 

Effective Dates. full force and effect thirty days after its pas- 

Section 2 of S.L. 1998, ch. 238 declared an sage and approval. Approved March 20, 1998. 
emergency and provided this act shall be in 

39-1301B. Nursing facility conversions. — (1) A nursing facility 
that voluntarily reduces the number of its licensed beds to provide residen- 
tial and assisted living services, certified family home services, adult day 
health services, respite care, hospice, outpatient therapy services, congre- 
gate meals, home health, senior wellness clinic, or other services provided 
under a medicaid home and community-based services waiver for the aged 
or disabled may convert the original facility or portion of the facility back, 
and thereby increase the number of nursing home beds to no more than the 
previously licensed number of nursing home beds provided the facility has 
been in continuous operation and has not been purchased or leased. Any 
conversion to the original licensed bed capacity, or to any portion thereof, 
shall comply with the same life safety code requirements as existed at the 
time the nursing facility voluntarily reduced its licensed beds. 






291 HOSPITAL LICENSES AND INSPECTION 39-1302 

(2) To convert beds back to nursing facility beds under this section, the 
nursing home must: 

(a) Give notice of its intent to preserve conversion options to the depart- 
ment no later than thirty (30) days after the effective date of the license 
reduction; and 

(b) Give notice to the department and any affected participant of the 
intent to convert beds back. If construction is required for the conversion 
of beds back, the notice of intent to convert beds back must be given, at a 
minimum, one (1) year prior to the effective date of license modification 
reflecting the restored beds; otherwise, the notice must be given a 
minimum of ninety (90) days prior to the effective date of license 
modification reflecting the restored beds. 

(3) Conversion of beds back to nursing facility use under this section 
must be completed no later than four (4) years after the effective date of the 
license reduction. However, for good cause shown, the four (4) year period for 
conversion may be extended by the department for an additional four (4) 
year period. 

History. 

I.C., § 39-1301B, as added by 2000, ch. 274, 
§ 7, p. 799. 

39-1301C. Deemed status of hospice agency and its hospice home 
— No Idaho license or certification required. — (1) A hospice house 
and its owner and operator medicare certified hospice agency must have and 
maintain deemed status through a centers for medicare & medicaid services 
recognized accrediting organization. 

(2) Neither a medicare certified hospice agency nor its hospice home is 
required to be licensed or certified by the state of Idaho. 

History. 

I.C., § 39-1301C, as added by 2010, ch. 84, 
§ 2, p. 163. 

STATUTORY NOTES 

Compiler's Notes. 

For centers for medicare & medicaid ser- 
vices, see http://www.cms.gov . 

39-1302. Purpose. — The purpose of sections 39-1301 — 39-1314, 
Idaho Code, is to provide for the development, establishment and enforce- 
ment of standards (1) for the care and treatment of individuals in facilities 
or by agencies as defined, and (2) for the construction, maintenance and 
operation of facilities or agencies as defined which, in the light of advancing 
knowledge, will promote safe and adequate treatment of such individuals in 
facilities or by agencies as defined. 

History. 

1947, ch. 133, § 2, p. 324; am. 1980, ch. 159, 
§ 2, p. 333. 



39-1303 HEALTH AND SAFETY 292 

RESEARCH REFERENCES 

Am. Jur. — 40AAm. Jur. 2d, Hospitals and C.J.S. — 41 C.J.S., Hospitals, § 1 et seq. 

Asylums, § 1 et seq. 

39-1303. Licensure. — After January 1, 1948, no person or governmen- 
tal unit, acting severally or jointly with any other person or governmental 
unit shall establish, conduct or maintain a facility or agency, as defined, in 
this state without a license under sections 39-1301 — 39-1314, Idaho Code. 

History. 

1947, ch. 133, § 3, p. 324; am. 1980, ch. 159, 
§ 3, p. 333. 

STATUTORY NOTES 

Cross References. 

Health care certificate of need, §§ 39-4901 
et seq. 

RESEARCH REFERENCES 

Am. Jur. — 40 Am. Jur. 2d, Hospitals and C.J.S. — 41 C.J.S., Hospitals, § 1 et seq. 

Asylums, § 4. 

39-1303a. Definition of services and regulation of facilities in 
preceding section. — For the purposes of this act, the board shall have the 
authority to define the services requisite to the operation of the facilities 
defined and to establish rules and regulations and standards for the 
licensing of each type of facility and for the administrative personnel of each 
type of facility. 

History. § 120, p. 633; am. and redesig. 1980, ch. 159, 

1969, ch. 416, § 2, p. 1157; am. 1974, ch. 23, § 5, p. 333; am. 1981, ch. 32, § 2, p. 51. 

STATUTORY NOTES 

Prior Laws. 1303b, was amended and redesignated as 

Former § 39-1303a, which comprised S.L. § 39-1303a by § 5 of S.L. 1980, ch. 159. 

1969, ch. 416, § 1, p. 1157; am. 1975, ch. 59, The words "this act" refer to S.L. 1969, ch. 

159 T 4 123 ' WaS repealed by SX " 1980, Ch * 416 > which is compiled as this section. 

Compiler's Notes. 

This section, formerly compiled as § 39- 

JUDICIAL DECISIONS 

Cited in: Miller v. St. Alphonsus Regl Med. 
Ctr., Inc., 139 Idaho 825, 87 P.3d 934 (2004). 

39- 1303b. Agreements for allocation of services between neigh- 
boring hospitals. — Hospitals serving the same, or generally the same, 
geographical area may, by agreement or other arrangement to eliminate 
duplication, allocate as between themselves, in whole or in part, the 



293 HOSPITAL LICENSES AND INSPECTION 39-1304 

provision of those services and facilities denned by the board of health and 
welfare as requisite to their licensure as hospitals. 

History. § 1, p. 470; am. and redesig. 1980, ch. 159, 

I.C., § 39-1303c, as added by 1976, ch. 122, § 6, p. 333. 

STATUTORY NOTES 

Cross References. Former § 39-1303b, which comprised S.L. 

Board of health and welfare, § 56-1005. 1969, ch. 416, § 2, p. 1157; am. 1974, ch. 23, 

Compiler's Notes. § 120, p. 633, was amended and redesignated 

This section formerly compiled as § 39- as § 39_i303a by S.L. 1980, ch. 159, § 5. 
1303c was amended and redesignated as 
§ 39-1303b by § 6 of S.L. 1980, ch. 159. 

39-1303c. Curtailment of required services. — Any licensed facility 
or agency as denned, upon petition and showing of good cause therefor, to 
the satisfaction of the board may reduce, curtail or eliminate any service or 
facility which might otherwise be required for licensure by the board. A 
showing that the service or facility is unnecessary by reason of an arrange- 
ment with another facility or agency as denned, pursuant to section 
39- 1303b, Idaho Code, shall be conclusively deemed to be a showing of good 
cause under this section, and any licensed facility or agency as defined 
which, prior to January 1, 1976, had already reduced, curtailed or elimi- 
nated any service or facility by reason of the same being provided by another 
licensed facility or agency as defined, in the same community shall be 
deemed to have complied with this section. 

History. § 2, p. 470; am. and redesig. 1980, ch. 159, 

I.C., § 39-1303d, as added by 1976, ch. 122, § 7, p. 333. 

STATUTORY NOTES 

Compiler's Notes. Former § 39-1303c, which comprised I.C., 

This section formerly compiled as § 39- § 39-1303c, as added by 1976, ch. 122, § 1, p. 

1303d was amended and redesignated as 470, was amended and redesignated as § 39- 

§ 39-1303c by § 7 of S.L. 1980, ch. 159. 1303b by S.L. 1980, ch. 159, § 6. 

39- 1303d. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. designated as § 39-1303c by S.L. 1980, ch. 

Former § 39-13903d, was amended and re- 159, § 7. 

39-1304. Application for license. — An application for a license shall 
be made to the licensing agency upon forms provided by it and shall contain 
such information as the licensing agency reasonably requires, which may 
include affirmative evidence of ability to comply with such reasonable 
standards, rules and regulations as are lawfully prescribed hereunder by 
the board of health and welfare. 



39-1305 HEALTH AND SAFETY 294 

History. 

1947, ch. 133, § 4, p. 324; am. 1980, ch. 325, 
§ 4, p. 820. 

STATUTORY NOTES 

Cross References. 

Board of health and welfare, § 56-1005. 

39-1305. Issuance and renewal of license. — Upon receipt of an 
application for license and the license fee, when required, the licensing 
agency shall issue a license if the applicant meets the requirements 
established under this law. A license, unless sooner suspended or revoked, 
shall be renewable annually without charge upon filing by the licensee, and 
approval by the licensing agency, of an annual report upon such uniform 
dates and containing such information in such form as the licensing agency 
prescribes by regulation. Each license shall be issued only for the premises 
and persons or governmental units named in the application and shall not 
be transferable or assignable except with the written approval of the 
licensing agency. Licenses shall be posted in a conspicuous place on the 
licensed premises. 

History. 

1947, ch. 133, § 5, p. 324; am. 1980, ch. 159, 
§ 8, p. 333. 

39-1306. Denial or revocation of license — Hearings and review. 

— ■ The licensing agency may deny any application or revoke any license 
when persuaded by evidence that such conditions exist as to endanger the 
health or safety of any resident. Before denial or revocation is final, the 
licensing agency shall provide opportunity for a hearing at which time the 
owner or sponsor of any facility or agency, as defined, may appear and show 
cause why the license should not be denied or revoked. The board shall 
provide by rule and regulation a procedure whereby a waiver of a specific 
rule, regulation or standard may be granted in the event that good cause is 
shown for such a waiver and providing that said waiver does not endanger 
the health and safety of any resident. The decision to grant a waiver shall 
not be considered as precedent or be given any force or effect in any other 
proceeding. Said waiver may be renewed annually if sufficient written 
justification is presented to the licensing agency. Hearings for licensure, 
including denial and revocation, shall be conducted by the licensing agency 
pursuant to chapter 52, title 67, Idaho Code, and appeal shall be as provided 
therein. 

History. 

1947, ch. 133, § 6, p. 324; am. 1980, ch. 159, 
§ 9, p. 333. 

39-1307. Rules, regulations, and enforcement. — The board shall 
have the authority to adopt, amend, and enforce rules, regulations and 
standards consistent with the provisions of this act which are designed to 



295 HOSPITAL LICENSES AND INSPECTION 39-1307A 

protect the health and safety of patients being cared for in facilities or 
agencies as denned. [S.L. 1980, ch. 159, § 10.] 

The board of health and welfare with the advice of the advisory hospital 
council, hereinafter created, shall adopt, amend, promulgate and enforce 
such rules, regulations and standards with respect to all hospitals or 
different types of hospitals to be licensed hereunder as may be designed to 
further the accomplishment of the purposes of this law in promoting safe 
and adequate treatment of individuals in hospitals in the interest of public 
health, safety, and welfare. [S.L. 1980, ch. 325, § 5] Provided that nothing 
in this act or the rules and regulations adopted pursuant thereto shall be 
construed as authorizing the supervision, regulation, or control of the 
remedial care or treatment of residents or patients in any home, facility or 
agency as denned, conducted for those who rely upon treatment by prayer or 
spiritual means in accordance with the creed or tenets of any well- 
recognized church or religious denomination except as to sanitary and safe 
conditions of the premises, cleanliness of operation and its physical equip- 
ment. 

History. 

1947, ch. 133, § 7, p. 324; am. 1980, ch. 159, 
§ 10, p. 333; 1980, ch. 325, § 5, p. 820. 

STATUTORY NOTES 

Cross References. stituting "board of health and welfare" for 

Board of health and welfare, § 56-1005. "licensing agency" at the beginning of the 

sentence. It should be noted that the amend- 
Amendments. ment by chapter 325 still contains a reference 
This section was amended by two 1980 acts, to the "advisory hospital council." The laws 
chapter 159, approved March 25, 1980, effec- creating such council and denning its func- 
tive July 1, 1980, and chapter 325 approved tions ( §§ 39-1310, 39-1311) were repealed by 
April 2, 1980, effective April 2, 1980. The SL - 1980 > ch - 159 > § 12 - Chapter 159 also 
amendment of the first sentence by each amended the second sentence by substituting 
chapter was not compatible with the amend- " facili ty <> r agency as defined" for "or instru- 
ment by the other. Therefore the amendment tlon " Chapter 325 made no other changes, 
of the first sentence by each act has been Compiler's Notes 

compiled followed by its history. Chapter 159 The term ^ ^ in ^ firgt senten 

substituted the sentence compiled above for a refers to SL 1980 ch 159 which ig codified 

former first sentence which read: The keens- as §§ 39.1301, 39-1302 to 39-1303c, 39-1305 

ing agency with the advice of the advisory to 39.1307, 39-1308, 39-1310, and 39-1312 to 

hospital council, hereinafter created, shall 39 1314 

adopt, amend, promulgate and enforce such The term « thig act „ in the second 

rules regulations and standards with respect h refers to g L 1947> ch 133 which fa 

to all hospitals or different types of hospitals compile d as §§ 39-1301, 39-1302, 39-1303, 

to be licensed hereunder as may be designed 39.1304 to 39-1307, 39-1308 to 39-1310, and 

to further the accomplishment of the purposes 39-1312 to 39-39-1315 
of this law in promoting safe and adequate 

treatment of individuals in hospitals in the Effective Dates. 

interest of public health, safety, and welfare." Section 11 of S.L. 1980, ch. 325 declared an 

Chapter 325 amended such sentence by sub- emergency. Approved April 2, 1980. 

39-1307A. Food purchasing and storage. — Rules, regulations and 
minimum standards adopted by the board governing skilled nursing facili- 
ties or intermediate care facilities may provide requirements for food 
purchasing and storage, except that no rule, regulation or minimum 



39-1307B HEALTH AND SAFETY 296 

standard may limit the maximum size of a container in which milk for 
drinking purposes may be purchased. 

History. 

I.C., § 39-1307A, as added by 1988, ch. 330, 
§ 1, p. 992. 

39-1307B. Minimum staffing requirements. — The board shall make 
no rule designed to limit the work activities of any person regularly assigned 
to duty as nursing or auxiliary personnel preceding the assignment within 
the facility governed by the rules, regulations and minimum standards of 
the board. 

History. 

I.C., § 39-1307B, as added by 1988, ch. 330, 
§ 2, p. 992. 

39-1308. Effective date of regulations. — Any facility or agency as 
defined, which is in operation at the time of promulgation of any applicable 
rules or regulations or minimum standards under sections 39-1301 — 
39-1314, Idaho Code, shall be given a reasonable time, not to exceed two (2) 
years from the date of such promulgation, within which to comply with such 
rules and regulations and minimum standards, except for those conditions 
which present an imminent hazard to the health and safety of patients 
housed therein. 

History. 

1947, ch. 133, § 8, p. 324; am. 1980, ch. 159, 
§ 11, p. 333. 

39-1309. Inspections and consultations. — The licensing agency 
shall make or cause to be made such inspections and investigations as it 
deems necessary. The licensing agency may prescribe by regulations that 
any licensee or applicant desiring to make specified types of alteration or 
addition to its facilities or to construct new facilities shall before commenc- 
ing such alteration, addition or new construction, submit plans and speci- 
fications therefor to the licensing agency for preliminary inspection and 
approval or recommendations with respect to compliance with the regula- 
tions and standards herein authorized. Necessary conferences and consul- 
tations may be provided. 

History. 

1947, ch. 133, § 9, p. 324. 

39-1310. Information. — Information received by the licensing agency 
through filed reports, inspection, or as otherwise authorized under this law, 
which would identify individual residents or patients of facilities or agencies 
as defined shall be subject to disclosure according to chapter 3, title 9, Idaho 
Code, except in a proceeding involving the question of licensure. Public 
disclosure of information obtained by the licensing agency for the purposes 
of this act shall be governed by chapter 3, title 9, Idaho Code. Nothing in this 
act, however, shall be construed, nor shall any rule or regulation be 






297 HOSPITAL LICENSES AND INSPECTION 39-1312 

promulgated under this section, as to impair, restrict or alter the confiden- 
tiality and privilege afforded the physician and patient communications, 
including without limitation, documentation thereof in records of facilities 
or agencies as denned, or communications to and with nurses or other 
assisting persons or entities, nor shall this act be construed to amend by 
implication such physician-patient communication privilege as provided 
elsewhere in this code, including without limitation section 9-203(4), Idaho 
Code, which shall remain inviolate. 

History. 159, § 13, p. 333; am. 1990, ch. 213, § 41, p. 

1947, ch. 133, § 12, p. 324; am. 1975, ch. 480. 
133, § 1, p. 294; am. and redesig. 1980, ch. 

STATUTORY NOTES 

Prior Laws. The words "this act", in the second sentence 

Former § 39-1310, which comprised S.L. and near the end of the third sentence, refer 

1947, ch. 133, § 10, p. 324; am. 1955, ch. 229, t o S.L. 1975, ch. 133, which is codified as this 

§ 1, p. 502; am. 1963, ch. 108, § 1, p. 331; am. sec tion 

q 9 7 4 i o«n 2 \ § 1 kZ\ P Vo 633 ' WaS repealGd by ^ wards "this act", near the beginning of 



S.L. 1980, ch. 159, § 12. 



the third sentence, refer to S.L. 1980, ch. 159, 



Compiler's Notes. which is codified as §§ 39-1301, 39-1302 to 

This section was amended and redesig- 39-1303c, 39-1305 to 39-1307, 39-1308, 39- 

nated from § 39-1312 by S.L. 1970, ch. 159, 1310, and 39-1312 to 39-1314. 
§ 13. 

39-1311. Functions of advisory hospital council. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 133, § 11, p. 324, was repealed by S.L. 1980, 

This section, which comprised 1947, ch. ch. 159, § 12. 

39-1312. Penalty for operating a facility or agency without li- 
cense. — Any person establishing, conducting, managing, or operating any 
facility or agency as defined, without a license under sections 39-1301 — 
39-1314, Idaho Code, shall be guilty of a misdemeanor punishable by 
imprisonment in a county jail for a period of time not exceeding six (6) 
months, or by a fine not exceeding three hundred dollars ($300), or by both, 
and each day of continuing violations shall constitute a separate offense. 

In the event that the county attorney in the county where the alleged 
violation occurred fails or refuses to act within sixty (60) days of notification 
of the violation, the attorney general is authorized to prosecute violations 
under this act. 

History. 

1947, ch. 133, § 15, p. 324; am. and redesig. 
1980, ch. 159, § 15, p. 333. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Attorney general, § 67-1401 et seq. This section, formerly compiled as § 39- 



39-1313 HEALTH AND SAFETY 298 

1315, was amended and redesignated as Former § 39-1312, which comprised S.L. 

§ 39-1312 by § 15 of S.L. 1980, ch. 159. 1947, ch. 133, § 12, p. 324; am. 1975, ch. 133, 

The words "this act", at the end of the § 1, p. 294, was redesignated as § 39-1310 by 
section, refer to S.L. 1980, ch. 159, which is amendment of S.L. 1980, ch. 159, § 13. 
codified as §§ 39-1301, 39-1302 to 39-1303c, 
39-1305 to 39-1307, 39-1308, 39-1310, and 
39-1312 to 39-1314. 

39-1313. Injunction to prevent operation without license. — Not- 
withstanding the existence or pursuit of any other remedy, the licensing 
agency may in the manner provided by law maintain an action in the name 
of the state for injunction or other process against any person or govern- 
mental unit to restrain or prevent the establishment, conduct, management 
or operation of a facility or agency as defined, without a license under 
sections 39-1301 — 39-1314, Idaho Code. 

The licensing agency shall be represented by the county prosecutor of the 
county in which the violation occurs or by the office of the attorney general. 

History. 

1947, ch. 133, § 16, p. 324; am. and redesig. 
1980, ch. 159, § 16, p. 333. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Attorney general, § 67-1401 et seq. This section, formerly compiled as § 39- 

Prior Laws. 1316, was amended and redesignated as 

Former § 39-1313, which comprised S.L. § 39-1313 by § 16 of S.L. 1980, ch. 159. 
1947, ch. 133, § 13, p. 324, was repealed by 
S.L. 1980, ch. 159, § 14. 

39-1314. Separability. — If any provision of sections 39-1301 — 
39-1314, Idaho Code, or the application thereof to any person or circum- 
stance shall be held invalid, such invalidity shall not affect the provisions or 
application of this act which can be given effect without the invalid provision 
or application, and to this end the provisions of the act are declared to be 
severable. 

History. 

1947, ch. 133, § 18, p. 324; am. and redesig. 
1980, ch. 159, § 17, p. 333. 

STATUTORY NOTES 

Prior Laws. 1317, was amended and redesignated as 

Former § 39-1314, which comprised S.L. § 39-1314 by § 17 of S.L. 1980, ch. 159. 

1947, ch. 133, § 14, p. 324, was repealed by The words " this act "> in this section, refer to 

S L 1980 ch 159 § 14 S.L. 1947, ch. 133, which is compilsed as 

§§ 39-1301, 39-1302, 39-1303, 39-1304 to 39- 

Compiler's Notes. 1307, 39-1308 to 39-1310, and 39-1312 to 

This section, formerly compiled as § 39- 39-1315. 



299 HOSPITAL LICENSES AND INSPECTION 39-1319 

39-1315. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. designated as § 39-1312 by S.L. 1980, ch. 

Former § 39-1315, was amended and re- 159, § 15. 

39-1316. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. designated as § 39-1313 by S.L. 1980, ch. 

Former § 39-1316, was amended and re- 159, § 16. 

39-1317. [Amended and redesignated.] 

STATUTORY NOTES 

Compiler's Notes. ignated as § 39-1314 by S.L. 1980, ch. 159, 

Former § 39-1317 was amended and redes- § 17. 

39-1318. Hospital boards — Duty to acquire, construct, improve 
and maintain public hospitals and medical clinics. — The betterment 
and protection of the public health and care of the sick and afflicted are 
hereby declared to be the established and permanent policy of the state of 
Idaho, the duty is hereby imposed upon the hospital boards provided for by 
this act of acquiring, constructing, improving and maintaining public 
hospitals or medical clinics within their districts for the necessary care and 
treatment of persons requiring medical services. 

History. 



tiistory. 

1965, ch. 173, § 1, p. 340; am. 1976, ch. 132, 
§ 1, P- 497. 



STATUTORY NOTES 

Prior Laws. this complete repeal and to the fact that the 

S.L. 1965, ch. 173, § 37, repealed the old 1955 act covers the same general subject- 

SMS &!?££&%£ &£% matter > the ° ld - tion — ha - be - 

121, §§ 1 to 38, p. 177, formerly compiled as utilized in numbering the 1965 act. 

§§ 39-1318 to 39-1353; S.L. 1955, ch. 184, _ .. , ^ T A 

§§ 1 to 38, p. 372, formerly compiled as Compiler s Notes. 

§§ 39-1354 to 39-1389; S.L. 1959, ch. 70, §§ 1 The words tlus act refer to SL - 1965 > ch - 

to 3, p. 151, formerly compiled as §§ 39-1320, 173 > which is compiled as §§ 39-1318 to 39- 

39-1389, 39-1390; S.L. 1961, ch. 59, § l,p.87, 1325, 39-1326 to 39-1330, and 39-1331 to 

formerly compiled as § 39-1356A. Owing to 39-1353. 

39-1319. Definitions. — A "hospital district" is one to furnish general 
hospital services, and together with such hospital services, nursing home 
services, or medical clinic services to the general public and all other such 
services as may be necessary for the care of the injured, maimed, sick, 
disabled, convalescent or long-term care patients. As used in sections 
39-1318 through 39-1357, Idaho Code, "medical clinic" means a place 
devoted primarily to the maintenance and operation of facilities for outpa- 



39-1320 HEALTH AND SAFETY 300 

tient medical, surgical and emergency care of acute and chronic conditions 
or injury. 

The word "board" as used in this act shall mean the board of trustees of 
the district. A "qualified elector" of a district within the meaning of and 
entitled to vote under this act, is a person qualified to vote at general 
elections in this state, and who has been a bona fide resident of the district 
for at least thirty (30) days prior to any election in the district. A "taxpayer" 
within the meaning of and as used in this act is a person or the husband or 
wife of a person whose name appears on the tax rolls of the county and is 
there assessed with unexempted real or personal property owned and 
subject to taxation within the boundaries of the district. 

Whenever the term "publication" is used in this act and no manner 
specified therefor, it shall be taken to mean once a week for three (3) 
consecutive weeks in at least one (1) newspaper of general circulation in the 
district. It shall not be necessary that publication be made on the same day 
of the week in each of the three (3) weeks, but not less than fourteen (14) 
days (excluding the first day of publication), shall intervene between the 
first publication and the last publication, and publication shall be complete 
on the day of the last publication. 

History. § 2, p. 497; am. 1990, ch. 354, § 1, p. 956; am. 

1965, ch. 173, § 2, p. 340; am. 1976, ch. 132, 1993, ch. 137, § 1, p. 337. 

STATUTORY NOTES 

Prior Laws. 173, which is compiled as §§ 39-1318 to 39- 

Former § 39-1319 was repealed. See Prior 1325, 39-1326 to 39-1330, and 39-1331 to 

Laws, § 39-1318. 39-1353. 

~ .. , __ , The words enclosed in parentheses so ap- 

Compiler's Notes. oeared in the law as enacted 

The words "this act" refer to S.L. 1965, ch. peared m the laW aS enacted - 

39-1320. Organization of hospital district — Petition — Contents 
— Filing. — The organization of a hospital district shall be initiated by a 
petition filed with the board of county commissioners of the county of [in] 
which the said district is situated. Said petition shall be signed by not less 
than ten per cent (10%) of the qualified electors and taxpayers of the 
proposed district. The equalized county assessment list last preceding the 
presentation of the petition for the organization of the hospital district shall 
be sufficient evidence of the title for the purpose of this act, but other 
evidence may be received. 

The petition shall set forth: 

(1) The name of the proposed district consisting of a chosen name 
preceding the words "hospital district". 

(2) A general statement of the purpose of the formation of said district. 

(3) A general description of the boundaries of the district or territory to be 
included therein with such certainty to enable a property owner to deter- 
mine whether or not his property is within the district. 

(4) A map showing the general boundaries of such district in relation to 
outstanding natural monuments and terraine features. 

(5) A prayer for the organization of the district. 

Similar petitions or duplicate copies of the same petition for the organi- 



301 HOSPITAL LICENSES AND INSPECTION 39-1322 

zation of the same district may be filed and shall together be regarded as one 
(1) petition. All petitions filed prior to the hearing on the first petition filed 
shall be considered by the board the same as though filed with the first 
petition placed on file. 

Provided, however, that no such district shall be organized unless it shall 
appear that the boundaries of said district are wholly within the limits of a 
single county and that there shall be no unnatural extension of the 
boundaries of said district. 

The petition together with all maps and other papers filed therewith shall 
at all proper hours be open to public inspection in the office of the clerk of the 
board of county commissioners between the date of their said filing and the 
date of an election to be held as hereinafter provided. 

History. 

1965, ch. 173, § 3, p. 340. 

STATUTORY NOTES 

Prior Laws. graph was inserted by the compiler to supply 

Former § 39-1320 was repealed. See Prior the probable intended term. 

Laws § 39-1318 Th e wor ds "this act" refer to S.L. 1965, ch. 

173, which is compiled as §§ 39-1318 to 39- 

Compiler's Notes. 1325, 39-1326 to 39-1330, and 39-1331 to 

The bracketed word "in" in the first para- 39-1353. 

39-1321. Joint districts in one or more counties. — A hospital 
district as provided in section 39- 1320 [, Idaho Code,] may be organized 
where it appears that said district will be within the boundaries of one (1) 
or more counties, where all the other requirements provided in section 
39- 1320 [, Idaho Code,] have been met, and the county commissioners of each 
county in which such district will be formed shall affirmatively find that the 
public welfare of that portion of the county will be served by the inclusion 
thereof in such joint county district, that such district is not an unnatural 
extension of a service district for hospital services, and that the petition for 
such district has been signed by not less than 10% of the qualified electors 
and taxpayers of that portion of the proposed district lying within the 
county. 

History. 

1965, ch. 173, § 4, p. 340. 

STATUTORY NOTES 

Prior Laws. compiler to conform to the statutory citation 

Former § 39-1921 was repealed. See Prior style. 
Laws, § 39-1318. 
Compiler's Notes. 

The bracketed insertions were added by the 

39-1322. Notice of time of hearing on petition — Order fixing 
boundaries — Appeal. — When such petition is presented to the board of 
county commissioners and filed in the office of the clerk of such board, the 
said board shall set a time for a hearing upon such petition which shall not 



39-1323 HEALTH AND SAFETY 302 

be less than four (4) nor more than six (6) weeks from the date of the 
presentation and filing of such petition. A notice of time of such hearing shall 
be published by said board once each week for three (3) successive weeks 
previous to the time set for such hearing in a newspaper published within 
the county in which said district is situated. Said notice shall state that a 
hospital district is proposed to be organized giving the proposed boundaries 
thereof and that any taxpayer within the proposed boundaries of such 
proposed district may on the date fixed for such hearing appear and offer 
any objection to the organization of such district, the proposed boundaries 
thereof or the including or excluding of any real property, therein or 
therefrom. After hearing and considering any and all objections, if any such 
be interposed, the county commissioners shall thereupon make an order, 
either denying such petition or granting the same, with or without modifi- 
cation, and shall accordingly fix the boundaries of such proposed district in 
any order granting such petition. The boundaries so fixed shall be the 
boundaries of said district after its organization be completed as provided in 
this act, and a map showing the boundaries of such proposed district, as 
finally fixed and determined by the board of county commissioners, shall be 
prepared and filed in the office of the clerk of said board. Any person 
aggrieved by said order, or any taxpayer within said proposed district may 
take an appeal from said order establishing the boundaries of said district, 
in the manner provided by sections 31-1509, 31-1510, 31-1511, and 31-1512, 
Idaho Code, on questions of both law and fact. 

History. 

1965, ch. 173, § 5, p. 340. 

STATUTORY NOTES 

Prior Laws. and S.L. 1994, ch. 241, § 2. Appeals of deci- 

Former § 39-1322 was repealed. See Com- s i ons f boards of county commissioners are 

piler's notes, § 39-1318. now governe d by the Idaho administrative 

Compiler's Notes. procedure act, chapter 52, title 67, Idaho 

Sections 31-1509, 31-1510, and 31-1511, Code. 

referred to near the end of this section, were The words "this act" refer to S.L. 1965, ch. 

repealed by S.L. 1993, ch. 103, § 1. Section 173, which is compiled as §§ 39-1318 to 39- 

31-1512, also referred to near the end of this 1325, 39-1326 to 39-1330, and 39-1331 to 

section, was repealed by S.L. 1994, ch. 35, § 1 39-1353. 

39-1323. Election in proposed district — Notice — Qualifications 
of voters. — Such petition may be filed with the clerk of the board of county 
commissioners at any time, and on such filing and after the county 
commissioners have made an order finally fixing and determining the 
boundaries of the proposed district, and have made and entered an order 
calling an election to be held, subject to the provisions of section 34-106, 
Idaho Code, in said district, said clerk shall cause to be published a notice 
of an election to be held in such proposed district for the purpose of 
determining whether or not the same shall be organized under the provi- 
sions of this act. Provided, however, if an appeal is taken from such order 
establishing the boundaries, such election shall not be held until after the 
determination of such appeal. Such notice shall plainly and clearly desig- 



303 HOSPITAL LICENSES AND INSPECTION 39-1324 

nate the boundaries in or the boundaries of said districts, and shall state the 
name of the proposed districts as designated in the petition. 

Such notice shall be published once not less than twelve (12) days prior to 
the election, and a second time not less than five (5) days prior to such 
election in a newspaper published within the county as aforesaid. At such 
election the voters shall vote for or against the organization of the district. 
No person shall be entitled to vote at any election held under the provisions 
of this chapter unless he or she shall possess all the qualifications required 
of electors under the general laws of the state and be a resident of the 
proposed district. 

History. 

1965, ch. 173, § 6, p. 340; am. 1995, ch. 118, 
§ 48, p. 417. 

STATUTORY NOTES 

Prior Laws. 173, which is compiled as §§ 39-1318 to 39- 

Former § 39-1323 was repealed. See Prior 1325, 39-1326 to 39-1330, and 39-1331 to 
Laws, § 39-1318. 39-1353. 

Compiler's Notes. 

The words "this act" refer to S.L. 1965, ch. 

39-1324. Election — Manner of conducting. — Such election shall be 
held and conducted in accordance with the general election laws of the state, 
including the provisions of chapter 14, title 34, Idaho Code. 

The board of county commissioners shall establish as many election 
precincts within such proposed district as may be necessary, and define the 
boundaries thereof. The county clerk shall appoint judges of election, one (1) 
of whom shall act as clerk for each such election precinct who shall perform 
the same duties as judges of election under the general laws of the state, and 
the result of such election shall be certified, canvassed and declared by the 
board of county commissioners. The reasonable compensation of said judges 
and clerks of election, and the expenses of publication of notices, printing of 
ballots and furnishing of supplies for the election shall be paid by the 
petitioners, and to this end the board of county commissioners are empow- 
ered to require the deposit of all estimated costs in advance of such election. 

History. 

1965, ch. 173, § 7, p. 340; am. 1995, ch. 118, 
§ 49, p. 417; am. 2009, ch. 341, § 65, p. 993. 

STATUTORY NOTES 

Prior Laws. district be organized" from the end of the first 

Former § 39-1324 was repealed. See Prior sentence, and, in the second sentence, substi- 

Laws, § 39-1318. tuted "The county clerk shall appoint judges 

of election" for "Said board of county commis- 

Amendments. sioners shall also appoint three (3) judges of 

The 2009 amendment, by ch. 341, in the election." 

first paragraph, updated the title reference; Effective Dates. 

and, in the last paragraph, deleted "which Section 161 of S.L. 2009, ch. 341 provided 

said precincts may thereafter be changed by that the act should take effect on and after 

the hospital board of such district in case such January 1, 2011. 



39-1325 HEALTH AND SAFETY 304 

39-1325. Election results — Canvass and certification — Order 
establishing district. — Immediately after any election for voting upon 
the organization of a hospital district, the judges of said election shall certify 
the official results of said election to the clerk of said board of commission- 
ers. The said board of commissioners shall, at its next regular meeting, 
proceed to canvass the votes cast at such election, and if upon such canvass 
it shall appear that one half (1/2) or more of the votes cast at such election 

are " hospital district, no.", then a record of that fact shall be duly 

entered upon the minutes of said board, and all proceedings in regard to the 
organization of said district shall be void. If it shall appear, upon such 
canvass, that more than one half (1/2) of the votes cast at such election are 

" hospital district, yes.", the said board shall by order entered on 

its minutes, declare such territory duly organized as a hospital district 
under the name designated in the petition. 

If an order be entered establishing the district, such order shall be deemed 
final and no appeal or writ of error shall lie therefrom, and the entry of such 
order shall finally and exclusively establish the regular organization of the 
said district against all persons, except the state of Idaho in an action in the 
nature of a writ of quo warranto commenced by the attorney general within 
thirty (30) days after the date of said order declaring such district organized, 
as herein provided, and not otherwise. The organization of said district shall 
not be directly or collaterally questioned in any suit, action or proceeding 
except as herein expressly authorized. 

Said board shall cause one (1) copy of such order duly certified to be 
immediately filed for record in the office of the county recorder in the county 
in which such district is situated and shall transmit to the governor one (1) 
certified copy thereof. 

From and after the date of such filing of said order of the board of county 
commissioners, declaring such territory duly organized as a hospital dis- 
trict, the organization of such district shall be completed, and thereupon the 
district shall be a governmental subdivision of the state of Idaho and a body 
corporate with all the powers of a public or quasi-municipal corporation. 

History. 

1965, ch. 173, § 8, p. 340. 

STATUTORY NOTES 

Cross References. 

Attorney general, § 67-1401 et seq. 

Prior Laws. 

Former § 39-1325 was repealed. See Prior 
Laws, § 39-1318. 

39- 132 5 A. Petitions for dissolution of hospital districts. — 

(1) Proceedings for the dissolution of a hospital district may be initiated by 
a petition containing the signatures of qualified electors of the district or 
owners of property within the district equal in number to ten percent (10%) 
of the qualified electors and taxpayers of the district, the same percentage 



305 HOSPITAL LICENSES AND INSPECTION 39-1325C 

required for the organization of the district, but not earlier than four (4) 
years after the date of its establishment. 

(2) The petition, when completed and verified, shall be filed with the clerk 
of the court of the county or counties if more than one (1) county is involved. 
The county clerk shall publish notice and the county commissioners shall 
hold a hearing on the matter. If necessary, they shall hold an election, 
subject to the provisions of section 34-106, Idaho Code, on the matter. The 
hearing and election shall be held in accordance with the terms and 
provisions of title 34, Idaho Code. The disposition of hospital district assets 
on dissolution and the provision for payment of district indebtedness shall 
be made in accordance with the provisions of sections 63-4105 and 63-4106, 
Idaho Code. 

(3) If the hospital district embraces territory in more than one (1) county, 
an election for its dissolution shall be deemed approved only if a majority of 
the votes cast in each such county were cast in the affirmative. If, upon the 
canvass of ballots, it be determined that the proposition has been approved, 
the board of county commissioners of each county shall enter its order to 
that effect, subject to the provisions of section 39-1325C, Idaho Code, and 
the order shall by them be made a matter of record. 

History. 1995, ch. 118, § 50, p. 417; am. and redesig. 

I.C., § 39-1325a, as added by 1988, ch. 173, 2004, ch. 263, § 1, p. 742; am. 2009, ch. 341, 
§ 1, p. 303; am. 1993, ch. 137, § 2, p. 337; am. § 66, p. 993. 

STATUTORY NOTES 

Compiler's Notes. sentence and substituted "title 34, Idaho 

This section was formerly compiled as § 39- Code" for "sections 40-1803 through 40-1809, 

1325a and was amended and redesignated by Idaho Code" in the third sentence. 
§ 1 of S. L. 2004, ch. 263. 

Amendments Effective Dates. 

The 2009 amendment, by ch. 341, in the Section 161 of S.L. 2009, ch. 341 provided 

second paragraph, substituted "county clerk" tnat tne act should take effect on and after 

for "county commissioners" and inserted "the January 1, 2011. 
county commissioners shall" in the second 

39-1325B. Nonfunctioning district. — Any hospital district which 
fails or has ceased to function for two (2) or more years may be dissolved by 
the board or boards of county commissioners of the county or counties in 
which it is located. The county commissioners may initiate such action by 
resolution subject to the provisions of section 39-1325C, Idaho Code. 

History. 

I.C., § 39-1325B, as added by 2004, ch. 263, 
§ 2, p. 742. 

39-1325C. Effect of dissolution. — (1) A dissolved hospital district 
continues its existence under the supervision of the board or boards of 
county commissioners of the county or counties in which the district is 
located, but may not carry on any business except that appropriate to wind 
up and liquidate its business and affairs, including the power to levy 
property taxes pursuant to the provisions of this chapter. 



39-1326 HEALTH AND SAFETY 306 

(2) The disposition of such property shall be governed by the provisions of 
section 63-4105, Idaho Code. 

(3) Upon completion of winding up and liquidating the district's business 
and affairs, the commissioners shall enter a final order terminating the 
district and shall notify in writing the social security administrator at the 
Idaho state controller's office within ninety (90) days of the dissolution. 

History. 

I.C., § 39-1325C, as added by 2004, ch. 263, 
§ 2, p. 742. 

39-1326. Board of trustees of district — Qualifications of mem- 
bers. — The board of trustees of such hospital district shall consist of seven 
(7) residents of the district who shall be elected or appointed as herein 
provided. Immediately following the establishment of a hospital district, the 
commissioners in the county in which the same is established shall appoint 
the seven (7) members of the first board, three (3) members to act until the 
first biennial election, two (2) until the second biennial election, and two (2) 
until the third biennial election, all of whom shall serve until the election 
and qualification of their successors. 

No person shall be qualified to serve as a trustee of a district organized 
under the provisions of this act unless he or she shall be a resident of the 
hospital district and a qualified elector of the state of Idaho. 

History. 

1965, ch. 173, § 9, p. 340; am. 1973, ch. 99, 
§ 1, p. 168. 

STATUTORY NOTES 

Prior Laws. 173, which is compiled as §§ 39-1318 to 39- 

Former § 39-1326 was repealed. See Prior 1325, 39-1326 to 39-1330, and 39-1331 to 
Laws, § 39-1318. 39-1353. 

Compiler's Notes. 

The words "this act" refer to S.L. 1965, ch. 

39-1327. Oaths and bonds of board members. — Whenever a 
district has been declared duly organized the members of the board shall 
qualify by filing with the clerk of the board of county commissioners their 
oaths of office, and corporate surety bonds at the expense of the district in an 
amount not to exceed one thousand dollars ($1,000) each, the form thereof 
to be fixed and approved by the board of county commissioners conditioned 
for the faithful performance of their duties as trustees. 

History. 

1965, ch. 173, § 10, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1327 was repealed. See Prior 
Laws, § 39-1318. 



307 HOSPITAL LICENSES AND INSPECTION 39-1329 

39-1328. Organization of board — Seal — Duties of treasurer — 
Compensation of members — Financial statement. — After taking 
oath and filing bonds, the board shall choose one (1) of its members as 
chairman of the board and president of the district, and shall elect a 
secretary and treasurer of the board and of the district who may or may not 
be members of the board. The secretary and treasurer may be one (1) person. 
Such board shall adopt a seal and the secretary shall keep in a well bound 
book a record of all its proceedings, minutes of all meetings, certificates, 
contracts, bonds given by employees and all corporate acts which shall be 
open to inspection by all owners of real property in the district as well as to 
all other interested parties. 

The treasurer shall keep strict and accurate accounts of all moneys 
received by and disbursed for and on behalf of the district in permanent 
records. He shall file with the board of trustees of the district, at the expense 
of the district, a corporate fidelity bond in an amount to be fixed by the board 
of trustees, in any case not less than ten thousand dollars ($10,000), 
conditioned on the faithful performance of the duties of his office. 

Each member of the board may receive as compensation for his services, 
a sum not in excess of six hundred dollars ($600) per annum, payable 
monthly. Such annual sum shall be fixed by the board, by resolution adopted 
by majority vote, at a regular monthly meeting in advance of the fiscal year 
in which it is to become effective. In addition, each member of the board 
shall receive the amount of his actual and necessary expenses incurred in 
the performance of his official duties as authorized by the board of trustees. 
No member of the board shall receive any compensation as an employee of 
the district or otherwise, other than that herein provided, and no member of 
the board shall be interested in any contract or transaction with the district 
except in his official representative capacity. 

It shall be the duty of the board of trustees to cause an audit to be made 
of all financial affairs of the district during each fiscal year which audit shall 
be made within one hundred twenty (120) days following the end of the fiscal 
year. A financial statement shall be certified by the person making such 
audit, which shall be published in the newspaper of general circulation in 
the district in one (1) issue not more than thirty (30) days following the 
audit; such audit shall be made by registered accountant or certified public 
accountant, who is not otherwise employed by the district. 

The court having jurisdiction of the district shall have the power to 
remove directors for cause shown on petition, notice and hearing. 

History. 101, § 1, p. 215; am. 1981, ch. 100, § 1, p. 

1965, ch. 173, § 11, p. 340; am. 1977, ch. 147. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1328 was repealed. See Prior 
Laws, § 39-1318. 

39-1329. Meetings — Quorum — Vacancies. — The board shall meet 
regularly once each month at a time and place to be designated by the board. 



39-1330 HEALTH AND SAFETY 308 

Special meetings may be held as often as the needs of the district require on 
notice to each member of the board. Four (4) members of the board shall 
constitute a quorum at any meeting. Any vacancy on the board shall be filled 
by the remaining members or member of the board, the appointee to act 
until the next biennial election, when the vacancy shall be filled by election. 
If the board shall fail, neglect or refuse to fill any vacancy within thirty (30) 
days after the same occurs, the board of county commissioners of the county 
in which said district is situated shall fill such vacancy. 

History. 

1965, ch. 173, § 12, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1329 was repealed. See Prior 
Laws, § 39-1318. 

39-1330. Biennial election of board members — Terms of office. — 

On the third Tuesday of May in the next odd-numbered calendar year after 
the organization of any district, and on the third Tuesday of May every 
second year thereafter, an election shall be held which shall be known as the 
biennial election of the district. 

At the first biennial election in any district hereafter organized and each 
sixth year thereafter there shall be elected by the qualified electors of the 
district three (3) members of the board to serve for a term of six (6) years; at 
the second biennial election and each sixth year thereafter there shall be 
elected two (2) members of the board to serve for a term of six (6) years; at 
the third biennial election and each sixth year thereafter there shall be 
elected two (2) members of the board to serve for terms of six (6) years. 

The county clerk shall provide for holding such elections and shall appoint 
judges to conduct it; the county clerk shall give notice of election by 
publication and shall arrange such other details in connection therewith as 
the board may direct. The returns of the election shall be certified to and 
shall be canvassed and declared by the board of county commissioners. The 
candidate or candidates according to the number of directors to be elected, 
receiving the most votes shall be elected. Any new member of the board shall 
qualify in the same manner as members of the first board qualify. 

In any election for director, if after the deadline for filing a declaration of 
intent as a write-in candidate, it appears that only one (1) qualified 
candidate has been nominated for a director's position, it shall not be 
necessary for the candidate to stand for election, and the board of directors 
of the district shall declare such candidate elected as a director, and the 
secretary of the board of the district shall immediately make and deliver to 
such person a certificate of election. 

For the purpose of achieving an orderly transition to a term of six (6) years 
and to hold trustee elections in odd-numbered years, the following schedule 
shall be followed: 

(a) For trustees elected in 2005, their terms shall expire in 2011 and the 

terms for each of those elected in 2011 shall be six (6) years and thereafter 

those terms shall be for six (6) years; 






309 



HOSPITAL LICENSES AND INSPECTION 



39-1330 



(b) For trustees elected in 2006, their 
terms for each of those elected in 2013 
those terms shall be for six (6) years; 

(c) For trustees elected in 2007, their 
terms for each of those elected in 2013 
those terms shall be for six (6) years; 

(d) For trustees elected in 2008, their 
terms for each of those elected in 2015 
those terms shall be for six (6) years; 

(e) For trustees elected in 2009, their 
terms for each of those elected in 2015 
those terms shall be for six (6) years; 

(f) For trustees elected in 2010, their 
terms for each of those elected in 2017 
those terms shall be for six (6) years. 



terms shall expire in 2013 and the 
shall be six (6) years and thereafter 

terms shall expire in 2013 and the 
shall be six (6) years and thereafter 

terms shall expire in 2015 and the 
shall be six (6) years and thereafter 

terms shall expire in 2015 and the 
shall be six (6) years and thereafter 

terms shall expire in 2017 and the 
shall be six (6) years and thereafter 



History. 

1965, ch. 173, § 13, p. 340; am. 1995, ch. 
118, § 51, p. 417; am. 1995, ch. 154, § 1, p. 



631; am. 2009, ch. 341, § 67, p. 993; am. 2011, 
ch. 11, § 22, p. 24. 



STATUTORY NOTES 



Prior Laws. 

Former § 39-1330 was repealed. See Prior 
Laws, § 39-1318. 

Amendments. 

This section was amended by two 1995 acts, 
ch. 118, § 51, effective July 1, 1995, and ch. 
154, § 1, effective July 1, 1995, which appear 
to be compatible and have been compiled 
together. However, the amendment by ch. 
154, § 1, at the beginning of the first sentence 
of the third paragraph, substituted "Not less 
than thirty (30) days nor more than sixty (60) 
days before any such election," for "Not less 
than 30 days nor more than 60 days before 
any such elections," but the amendment by 
ch. 118, § 51 deleted the above quoted phrase 
from the sentence. 

The 1995 amendment, by ch. 118, § 51, in 
the first sentence of the first paragraph, sub- 
stituted "first Tuesday" for "second Tuesday"; 
in the first sentence of the third paragraph, 
deleted "Not less than 30 days nor more than 
60 days before any such elections" from the 
beginning of the sentence, substituted "Nom- 
inations" for "nominations" and in the middle 
of the first sentence of the third paragraph, 
inserted "not later than the sixth Friday pre- 
ceding the election for which the nomination 
is made" and added the fourth paragraph. 

The 1995 amendment, by ch. 154, § 1, in 
the first sentence of the first paragraph, sub- 
stituted "first Tuesday" for "second Tuesday," 
added the last sentence of the first paragraph, 
and in the first sentence of the third para- 
graph, substituted "thirty (30) days" for "30 



days" and substituted "sixty (60) days" for "60 
days." 

The 2009 amendment, by ch. 341, in the 
first paragraph, twice substituted "the third 
Tuesday of May" for "the first Tuesday of 
February" and substituted "in the next odd- 
numbered calendar year" for "in the second 
calendar year," and deleted the last sentence, 
which read: "Prior to January 1, 1997, a board 
may, by resolution adopted at a regular meet- 
ing of the board, designate the fourth Tuesday 
in May as the election date of the district"; 
and in the third paragraph, in the second 
sentence, twice substituted "county clerk" for 
"board" and for "secretary of the district," and 
in the third sentence, added "of county com- 
missioners." 

The 2011 amendment, by ch. 11, deleted the 
former first sentence of the third paragraph 
which read: "Nominations may be filed with 
the secretary of the board not later than the 
sixth Friday preceding the election for which 
the nomination is made, and if a nominee 
does not withdraw his name before the first 
publication of the notice of election, his name 
shall be placed on the ballot"; and added the 
fifth paragraph followed by paragraphs (a) to 
(f>. 

Effective Dates. 

Section 161 of S.L. 2009, ch. 341 provided 
that the act should take effect on and after 
January 1, 2011. 

Section 27 of S.L. 2011, ch. 11 declared an 
emergency retroactively to January 1, 2011 
and approved February 23, 2011. 



39-1330A HEALTH AND SAFETY 310 

39-1330A, 39-1330B. One nomination — No board election — Write 
in candidacy — Declaration of intent. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. and I.C., § 39-1330B, as added by 1992, ch. 

These sections, which comprised I.C., § 39- 94, § 2, p. 308, were repealed by S.L. 1995, 
1330A, as added by 1992, ch. 94, § 1, p. 308, ch. 118, § 112, effective July 1, 1995. 

39-1331. Powers and duties of board. — For and on behalf of the 
district the board shall have the following powers: 

a. To have and use a corporate seal. 

b. To have perpetual existence. 

c. To sue and be sued and be a party to suits, actions and proceedings. 

d. To purchase, acquire, dispose of and encumber real and personal 
property and hold lands, buildings, and all types of property, make such 
contracts and purchases, acquire and hold such personal property as may be 
necessary or convenient for its purposes, provided, however, that before any 
real property of such district may be sold, notice thereof must be given by 
publication in a legal newspaper of general circulation in the county where 
such district is situated for three (3) consecutive weekly issues. 

e. In addition to the other means providing revenue for such districts as 
herein provided, the board shall have the power and authority to levy and 
collect ad valorem taxes on and against all taxable property within the 
district, as hereinafter provided. 

f. To borrow money and incur indebtedness and evidence the same by 
certificates, notes or debentures, and to issue bonds in accordance with the 
provisions of this act. 

g. To refund any bonded indebtedness of the district without an election, 
provided, however, that the obligations of the district shall not be increased 
by any refund of bonded indebtedness. Otherwise the terms and conditions 
of refunding bonds shall be substantially the same as those of an original 
issue of bonds. 

h. To have the management, control and supervision of all the business 
and affairs of the district, and the construction, installation, operation and 
maintenance of district improvements therein or therefor. 

i. To hire and retain agents, employees, engineers and attorneys. 

j. To have and exercise the power of eminent domain in manner provided 
by law for the condemnation of private property for public use; to take any 
property necessary to the exercise of the powers herein granted. 

k. To adopt and amend by-laws not in conflict with the constitution and 
laws of the state for carrying on business, objects and affairs of the board 
and of the district. 

I. To have and exercise all rights and powers necessary or incidental to, or 
implied from the specific powers granted herein, including the charging of 
reasonable rates for services rendered to patients of said hospital or medical 
clinic. Such specific powers shall not be considered as a limitation upon any 
power necessary or appropriate to carry out the purposes and intent of this 
act. 



311 HOSPITAL LICENSES AND INSPECTION 39-1333 

History. 

1965, ch. 173, § 14, p. 340; am. 1976, ch. 
132, § 3, p. 497. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

Power to transfer property to other govern- The words "this act" refer to S.L. 1965, ch. 

mental units, §§ 67-2322 to 67-2325. 173, wn ich is compiled as §§ 39-1318 to 39- 

„ . ¥ 1325, 39-1326 to 39-1330, and 39-1331 to 

Prior Laws. 

Former § 39-1331 was repealed. See Prior 

Laws, § 39-1318. 



39-1353. 



39-1332. Annual statement of valuation of taxable property. — On 

or before the first Monday in July of each year the county assessor shall 
deliver to the secretary of each hospital district within the county, a 
statement showing the aggregate valuation of all the taxable property in 
such district, and thereafter the district board shall levy the taxes herein 
provided for. 

History. 

1965, ch. 173, § 15, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1332 was repealed. See Prior 
Laws, § 39-1318. 

39-1333. Levy and collection of taxes — Initial financing. — To 

levy and collect taxes, as herein provided, the board shall, in each year, 
determine the amount of money necessary to be raised by taxation, taking 
into consideration other sources of revenue of the district, and shall fix a 
rate of levy, which when levied upon every dollar of assessed valuation of 
taxable property within the district, and with other revenues, will raise the 
amount required by the district annually to supply funds to pay for expenses 
of organization, purchase of necessary equipment, operation, maintenance 
and upkeep of the works and equipment of the district, provided, however, 
that said levy shall not exceed six hundredths percent (.06%) of market 
value for assessment purposes of all taxable property within the district for 
the purposes hereinbefore set forth, and provided further, that no levy shall 
be made in excess of four hundredths percent (.04%) of market value for 
assessment purposes for the purposes set forth in this section, unless the 
board of trustees of the district shall grant a public hearing, after notice of 
the time, place and purpose of said hearing has been published in a 
newspaper of general circulation in the district. Provided, that in the first 
year after organization, the board of a district may, for the purpose of 
organization, to finance general preliminary expenses of the district or for 
any other purpose of the hospital district law, and before making a tax levy, 
incur an indebtedness not exceeding in the aggregate a sum equal to three 
tenths percent (.3%) of market value for assessment purposes of all real and 
personal property within the district. To repay any such organizational 
indebtedness incurred, on or after March 21, 1985, the board shall have 



39-1334 



HEALTH AND SAFETY 



312 



authority to levy and collect an additional tax not to exceed one tenth 
percent (.1%) of market value for assessment purposes of all taxable 
property within the district. Such additional levy shall not be used for any 
purpose other than repayment of the organizational indebtedness and 
interest thereon. Such additional levy may be imposed until the organiza- 
tional indebtedness and interest thereon is paid in full. 



History. 

1965, ch. 173, § 16, p. 340; am. 1985, ch. 



243, § 1, p. 574; am. 1988, ch. 177, § 1, p. 
310; am. 1996, ch. 208, § 20, p. 658. 



STATUTORY NOTES 



Prior Laws. 

Former § 39-1333 was repealed. See Prior 
Notes, § 39-1318. 

Effective Dates. 

Section 2 of S.L. 1985, ch. 243 declared an 
emergency. Approved March 21, 1985. 



Section 22 of S.L. 1996, ch. 208 declared an 
emergency and provided that this section 
should be in effect July 1, 1996. Approved 
March 12, 1996. 



JUDICIAL DECISIONS 

Analysis 



Legislative intent. 

Limitation on budget requests. 



Legislative Intent. 

This section does not demonstrate an intent 
by the legislature to let the district accumu- 
late funds for future use. This section states 
that taxes are to be raised "annually to supply 
funds." The wording of this section instructs 
the board of directors of a taxing district to 
prepare a budget for the coming fiscal year 
and then the board is allowed to levy a tax if 
it is necessary to supply funds for the coming 
fiscal year. It does not allow the placement of 
the funds in a capital improvement account. 
Idaho County Property Owners Ass'n v. 
Syringa Gen. Hosp. Dist., 119 Idaho 309, 805 
P.2d 1233 (1991). 

Limitation on Budget Requests. 

Since former § 63-2220 (now repealed) lim- 
ited the operating budget, it would only apply 



to the levies under this section and would not 
apply to the § 39-1334 levies used for the 
capital improvement account. The capital im- 
provement account is not part of a district's 
annual operating budget. Idaho County Prop- 
erty Owners Ass'n v. Syringa Gen. Hosp. 
Dist., 119 Idaho 309, 805 P.2d 1233 (1991). 

A preliminary injunction would have been a 
proper remedy to prohibit a hospital district 
from placing levies it obtained pursuant to 
this section in a capital improvement fund or 
using the funds to help in renovation. Prop- 
erty owners alleged that the funds were being 
used in violation of the statute and they 
showed the clear right they had for relief and 
the irreparable injury necessary for the issu- 
ance of an injunction. Idaho County Property 
Owners Ass'n v. Syringa Gen. Hosp. Dist., 119 
Idaho 309, 805 P2d 1233 (1991). 



39-1334. Additional tax levies. — (a) If it becomes necessary and 
expedient so to do, it shall be lawful for the board to levy additional taxes 
and collect revenue for the purpose of creating a reserve sinking fund for the 
purpose of accumulating moneys with which to add new buildings or 
necessary equipment, and to provide extensions of and betterments to the 
improvements of the district, and for such purposes may levy an additional 
tax not to exceed two hundredths of one percent (.02%) of the market value 
for assessment purposes on all taxable property in the district. 

(b) If the board finds it necessary to maintain the solvency of a facility or 
facilities, the board is authorized to levy additional taxes and collect revenue 
in excess of the limitations prescribed by section 39-1333, Idaho Code, for 
the sole purpose of retiring current or past due obligations accruing where 



313 HOSPITAL LICENSES AND INSPECTION 39-1335 

operating expenses for such a facility or facilities have exceeded all available 
sources of revenue in the fiscal year preceding the anticipated date of levy; 
provided, that any such additional levy shall be authorized only if approved 
by two-thirds (%) of the qualified electors of the district voting at an election 
called and conducted in the manner specified in sections 39-1339 through 
39-1342, Idaho Code. 

History. 1995, ch. 118, § 52, p. 417; am. 1996, ch. 322, 

1965, ch. 173, § 17, p. 340; am. 1981, ch. 66, § 35, p. 1029. 
§ 1, p. 96; am. 1995, ch. 82, § 16, p. 218; am. 

STATUTORY NOTES 

Prior Laws. Section 73 of S.L. 1996, ch. 322, provided 

Former § 39-1334 was repealed. See Prior that the act should be in full force and effect 
Laws, § 39-1318. on January 1, 1997. 

Effective Dates. 

Section 2 of S.L. 1981, ch. 66 declared an 
emergency. Approved March 23, 1981. 

JUDICIAL DECISIONS 

Analysis 

Discretion to assess levy. 
Improvement account. 

Discretion to Assess Levy. Syringa Gen. Hosp. Dist., 119 Idaho 309, 805 

This section allows for an accumulation of P2d 1233 (1991). 

monies for capital improvements as deter- Improvement Account. 

mined by the board of the taxing district. Since former § 63-2220 (now repealed) lim- 

There are no requirements for a public hear- ; te ? t] ? e operating budget it would only apply 

in* or a snprifir tilan of rpnovatior. nor a to levies under § 39-1333 and would not ap- 
ing, or a specinc plan of renovation nor a j to ^ levieg ^^ mg secti(m uged for 

maximum period allowed for accumulation. the c ital improvem ent account. Idaho 

The board of directors of the taxing district is County Property Owners Ass'n v. Syringa 

allowed complete discretion to assess this Gen. Hosp. Dist., 119 Idaho 309, 805 P.2d 

levy. Idaho County Property Owners Ass'n v. 1233 (1991). 

39-1335. Tax levy to pay interest on bonds and other obligations. 

— In addition to the taxes hereinbefore provided for, the said board shall 
have the authority to levy and collect taxes as herein provided in each year 
sufficient to promptly pay in full, when due, all interest on the principal of 
bond and other obligations of the district authorized as provided by sections 
39-1338 and 39-1339[, Idaho Code,] of this act. 

History. 

1965, ch. 173, § 18, p. 340. 

STATUTORY NOTES 

Prior Laws. compiler to conform to the statutory citation 

Former § 39-1335 was repealed. See Prior st yte- 
Laws, § 39-1318. The words "this act" refer to S.L. 1965, ch. 

173, which is compiled as §§ 39-1318 to 39- 
Compiler's Notes. 1325, 39-1326 to 39-1330, and 39-1331 to 

The bracketed insertion was added by the 39-1353. 



39-1336 HEALTH AND SAFETY 314 

39-1336. Maturing indebtedness a consideration in annual lev- 
ies. — The board in certifying annual levies as herein provided, shall take 
into account maturing indebtedness for the ensuing year as provided in its 
contracts, maturing bonds, and interest on bonds and deficiencies and 
defaults of prior years, and shall make ample provision for the payment 
thereof. 

History. 

1965, ch. 173, § 19, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1336 was repealed. See Prior 
Laws, § 39-1318. 

39-1337. Tax rate — Certification — Levy and collection. — The 

board shall, on or before the first day of September of each year, certify to the 
board of commissioners the rate so fixed with corrections that at the time 
and in the manner required by law for levying taxes for county purposes 
such board of county commissioners shall levy such taxes upon the assessed 
valuation of all taxable property within the district, in addition to such other 
taxes as may be levied by such board of county commissioners at the rate so 
fixed and determined. It shall be the duty of the body having authority to 
levy taxes within each county to levy the taxes provided in this act, and it 
shall be the duty of all officials charged with the duty of collecting taxes to 
collect such taxes at the time and in the manner and form and with like 
interest and penalties as other taxes are collected, and when collected, to 
pay the same to the district ordering its levy and collection, and the payment 
of such collection shall be made monthly to the treasurer of the district and 
paid into the depository thereof, to the credit of the district. 

History. 

1965, ch. 173, § 20, p. 340; am. 1971, ch. 13, 
§ 3, p. 24. 

STATUTORY NOTES 

Prior Laws. which had been repealed. To correct this sit- 

Former § 39-1337 was repealed. See Prior uation S.L. 1971, ch. 13 was adopted. 

Laws, § 39-1318. Section 1 of S.L. 1971, ch. 13 read: "Because 

of an apparent oversight in attempting to 

Compiler's Notes. amend certain sections of the Idaho Code by 

The words "this act" refer to S.L. 1965, ch. Sections 2 and 3, Chapter 133, Laws of 1970, 

173, which is compiled as §§ 39-1318 to. 39- and to relieve any possible legal complications 

1325, 39-1326 to 39-1330, and 39-1331 to which may arise from such oversight, the 

39-1353. following amendatory act is deemed neces- 

Section 2 of S.L. 1970, ch. 133, according to sary." 

both the title and the law, purported to amend Section 2 of S.L. 1971, ch. 13 repealed S.L. 

§ 39-1337 ofthe Idaho Code. It seemed, how- 1970, ch. 133, §§ 2, 3, which purported to 

ever, that the amendment was of § 39-1337 amend §§ 39-1337 and 39-1373 ofthe Code. 

39-1338. Bond issues authorized — Form and terms. — To carry 
out the purposes of this act and to pay the necessary expenses ofthe district, 



315 HOSPITAL LICENSES AND INSPECTION 39-1339 

the board is hereby authorized to issue negotiable coupon bonds of the 
district. Bonds shall bear interest payable semiannually, and shall be due 
and payable serially either annually or semiannually, commencing not later 
than three (3) years from the date of issuance. The form and terms of said 
bonds, including provisions for their payment and redemption, shall be 
determined by the board. If the board so determines, such bonds may be 
redeemable prior to maturity, upon payment of a premium not exceeding 
three per cent (3%) of the net principal thereof. Said bonds shall be executed 
in the name of, and on behalf of, the district and signed by the chairman of 
the board with the seal of the district affixed thereto, and attested by the 
secretary of the board. Said bonds shall be in such denominations as the 
board shall determine, and the bonds and coupons thereto attached shall be 
payable to bearer. Interest coupons shall bear the original or facsimile 
signature of the chairman of the board. In all other respects, said bonds 
shall be issued, sold and paid in accordance with the provisions of chapter 2, 
title 57, Idaho Code, known as the "Municipal Bond Law" of the state of 
Idaho. 

History. 

1965, ch. 173, § 21, p. 340; am. 1971, ch. 12, 
§ 1, p. 23; am. 1981, ch. 55, § 1, p. 84. 

STATUTORY NOTES 

Cross References. mines, such bonds may be redeemable prior to 

Municipal Bond Law, § 57-201 et seq. maturity, upon payment of a premium not 

Prior Laws exceeding three per cent of the net principal 

Former § 39-1338 was repealed. See Prior thereof. Said bonds shall be executed in the 

Laws, § 39-1318. name of, and on behalf of, the district and 

signed by the chairman of the board with the 

Compiler's Notes. sea l f t h e district affixed thereto, and at- 

S.L. 1970, ch. 133, § 2, purported to amend tested by the secretary of the board. Said 

§ 39-1337. However, the amendment copied bonds sha n be m suc h denominations as the 

the language of the section of that number board shall determine, and the bonds and 

which had been repealed by S.L. 1965, ch. coupons thereto attached, shall be payable to 

173, § 37. The subject matter of such re- bearer. Interest coupons shall bear the origi- 

pealed section now appears in this section. na i f or ( or ) facsimile signature of the chair- 

The purported amendment of § 39-1337 read: man of the board. In all other respects, said 

"To carry out the purposes of this act and to bonds shall be issued, sold and paid in accor- 

pay the necessary expenses of the district, the dance with the provisions of the Municipal 

board is hereby authorized to issue negotiable Bond Law of the state of Idaho." Such section 

coupon bonds of the district. Bonds shall bear has been repealed by S.L. 1971, ch. 13. 

interest, payable semi-annually, and shall be The words "this act" refer to S.L. 1965, ch. 

due and payable serially either annually or 173> which is compiled as §§ 39-1318 to 39- 

semi-annually, commencing not later than 132 5, 39-1326 to 39-1330, and 39-1331 to 

three years and extending not more than 39-1353. 
twenty years from date. The form and terms 

of said bonds, including provisions for their Effective Dates. 

payment and redemption, shall be deter- Section 2 of S.L. 1971, ch. 12 declared an 

mined by the board. If the board so deter- emergency. Approved February 5, 1971. 

39-1339. Creation of indebtedness for works, improvements or 
equipment — Election on proposed indebtedness — Indebtedness or 
liability without election. — (1) Whenever the board of the hospital 
district shall by resolution determine that it is in the interest of said district 
and in the public interest or necessity to purchase, contract, lease or 



39-1339 HEALTH AND SAFETY 316 

construct or otherwise acquire facilities, equipment, technology and real 
property for health care operations or make any contract with the United 
States or other persons or corporations, public or private, municipalities or 
governmental subdivisions to carry out the said public works, acquisitions, 
improvements, objects or purposes of said district requiring the creation of 
an indebtedness payable out of taxes of five hundred thousand dollars 
($500,000) or more, and in any event when the indebtedness will exceed the 
income and revenue provided for the year, the board shall order the 
submission of the proposition of issuing such obligations or bonds or 
creating other indebtedness payable out of taxes to the qualified electors of 
the district at an election held, subject to the provisions of section 34-106, 
Idaho Code, for that purpose. The declaration of public interest or necessity, 
herein required, and the provision for the holding of such election may be 
included within one (1) and the same resolution, which resolution, in 
addition to such declaration of public interest or necessity shall recite the 
objects and purposes for which the indebtedness is proposed to be incurred, 
the estimated costs of the works, improvements, or medical or business 
equipment, as the case may be, the amount of principal of the indebtedness 
to be incurred therefor, and the maximum rate of interest to be paid on such 
indebtedness. Such resolutions shall also fix the date upon which such 
election shall be held, and the manner of holding the same in accordance 
with the provisions of title 34, Idaho Code, and the method of voting for or 
against the incurring of the proposed indebtedness; such resolution shall 
designate the polling place or places and the county clerk shall appoint 
judges, provided, however, that no district shall issue or have outstanding 
its coupon bonds in excess of two percent (2%) of the market value for 
assessment purposes of the real and personal property within the said 
district, according to the assessment of the year preceding any such issuance 
of such evidence of indebtedness for any or all of the propositions specified 
in this election, provided, however, that such bonds shall not be issued, nor 
shall any indebtedness be incurred, at any time that there shall be a bond 
issue outstanding and unpaid for the construction, acquisition or mainte- 
nance of a county hospital in the county in which such district is organized. 

(2) No election shall be required for any lease or other transaction 
entered into between the hospital district and the Idaho health facilities 
authority. Notwithstanding any other provision, the hospital district shall 
be entitled to enter into a lease or other transaction regardless of the 
amount involved with the Idaho health facilities authority upon determina- 
tion by the board of the hospital district that it is in the interest of the 
hospital district and best interests of the public to enter into such lease or 
other transaction. 

(3) Notwithstanding subsection (1) or (2) of this section and provided that 
no property tax revenues shall be used for payment of indebtedness 
authorized by this subsection, district hospitals, ancillary to their opera- 
tions and in furtherance of health care needs in their service areas, may 
incur indebtedness or liability without an election to purchase, contract, 
lease or construct or otherwise acquire facilities, equipment, technology and 
real property for health care operations. 



317 HOSPITAL LICENSES AND INSPECTION 39-1341 

History. am. 1990, ch. 354, § 2, p. 956; am. 1991, ch. 

1965, ch. 173, § 22, p. 340; am. 1971, ch. 25, 73, § 1, p. 176; am. 1995, ch. 118, § 53, p. 417; 

§ 4, p. 61; am. 1976, ch. 132, § 4, p. 497; am. am . 2 009, ch. 341, § 68, p. 993; am. 2011, ch. 

1977, ch. 60, § 1, p. 115; am. 1980, ch. 350, i 85> § i ? p . 535. 
§ 17, p. 887; am. 1983, ch. 133, § 1, p. 328; 

STATUTORY NOTES 

Cross References. bility without election"; rewrote and desig- 

Health facilities authority, § 39-1441 et nated the existing provisions of the section as 

sec l- subsection (1) and added subsections (2) and 

Prior Laws. ( 3 )- 



Former § 39-1339 was repealed. See Prior 



Effective Dates. 



Laws, § 39-1318. Section 3 of S.L. 1977, ch. 60 declared an 

Amendments. emergency. Approved March 15, 1977. 

The 2009 amendment, by ch. 341, rewrote Section 3 of S.L. 1990, ch. 354 declared an 

the last sentence to the extent that a detailed emergency. Approved April 10, 1990. 

comparison is impracticable. Section 161 of S.L. 2009, ch. 341 provided 

The 2011 amendment, by ch. 185, in the that the act should take effect on and after 

section heading, added "Indebtedness or lia- January 1, 2011. 

39-1340. Notices of election on proposed indebtedness. — When 
such election is ordered to be held, subject to the provisions of section 
34-106, Idaho Code, the board shall direct the county clerk as provided in 
section 34-1406, Idaho Code, to give notice by publication once not less than 
twelve (12) days prior to the election and a second time not less than five (5) 
days prior to the election published in one (1) or more newspapers within the 
district, if a newspaper is published therein. Said notices shall recite the 
action of the board in deciding to bond the district, the purpose thereof and 
the amount of the bonds supposed to be issued, the estimated costs of the 
works or improvements as the case may be, the amount of principal of the 
indebtedness to be incurred therefor, and the maximum rate of interest to be 
paid on such indebtedness, and shall also specify the date of the election and 
the time during which the polls shall be open. Notices shall also list the 
polling places. 

History. 118, § 54, p. 417; am. 2009, ch. 341, § 69, p. 

1965, ch. 173, § 23, p. 340; am. 1995, ch. 993. 

STATUTORY NOTES 

Prior Laws. Code, to"; and, in the last sentence, substi- 

Former § 39-1340 was repealed. See Prior tuted "list the polling places" for "name the 
Laws, § 39-1318. place holding the election." 

Amendments. Effective Dates. 

The 2009 amendment, by ch. 341, in the Section 161 of S.L. 2009, ch. 341 provided 

first sentence, inserted "direct the county that the act should take effect on and after 

clerk as provided in section 34-1406, Idaho January 1, 2011. 

39-1341. Conduct of election for proposed indebtedness. — The 

county clerk shall conduct the election in a manner prescribed by law in title 
34, Idaho Code. The returns thereof shall be canvassed and the results 
thereof shall be declared by the board of county commissioners. 



39-1342 HEALTH AND SAFETY 3 18 

History. 

1965, ch. 173, § 24, p. 340; am. 2009, ch. 
341, § 70, p. 993. 

STATUTORY NOTES 

Prior Laws. Effective Dates. 

Former § 39-1341 was repealed. See Prior Section 161 of S.L. 2009, ch. 341 provided 
Laws, § 39-1318. that the act should take effect on and after 

Amendments. January 1, 2011. 

The 2009 amendment, by ch. 341, rewrote 
the section to the extent that a detailed com- 
parison is impracticable. 

39-1342. Indebtedness incurred upon favorable vote — 
Resubmission of proposition not received favorably. — In the event 
that it shall appear from said returns that two-thirds (2/3) of the qualified 
electors of the district voting at such election shall have voted in favor of 
such proposition or any proposition submitted hereunder at such election, 
the district shall thereupon be authorized to incur such indebtedness or 
obligations, enter into such contract or issue and sell bonds of the district, as 
the case may be, all for the purpose or purposes, and object or objects 
provided for in the propositions submitted hereunder and in the resolution 
therefor and in the amount so provided at a rate of interest not exceeding 
the rate of interest recited in such resolution. The submission of the 
proposition of incurring such obligation or bonded or other indebtedness at 
such an election shall not prevent or prohibit submission of the same, or 
other propositions, at subsequent election or elections called for such 
purpose at any time, held subject to the provisions of section 34-106, Idaho 
Code. 

History. 

1965, ch. 173, § 25, p. 340; am. 1971, ch. 25, 
§ 5, p. 61; am. 1995, ch. 118, § 55, p. 417. 

STATUTORY NOTES 

Prior Laws. Effective Dates. 

Former § 39-1342 was repealed. See Prior Section 9 of S.L. 1971, ch. 25 declared an 
Laws, § 39-1318. emergency. Approved February 16, 1971. 

39-1343. Officials and sureties liable on bond. — All county officers 
entrusted with the assessment, collection, paying over or custody of taxes of 
any hospital district within the county, and their sureties, shall be liable 
upon their official bonds for the faithful performance of their duties in the 
assessment, collection and safe keeping of such hospital district taxes. 

History. 

1965, ch. 173, § 26, p. 340. 



319 HOSPITAL LICENSES AND INSPECTION 39-1346 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1343 was repealed. See Prior 
Laws, § 39-1318. 

39-1344. Taxes levied a lien — Collection. — All taxes levied by 
hospital districts, shall become a lien upon the property so assessed from the 
date of such assessment, and shall be due and payable at the time state and 
county taxes are due and payable and in all respects are to be collected in 
the same way, except that the assessor must keep a separate list or 
assessment roll therefor. 

History. 

1965, ch. 173, § 27, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1344 was repealed. See Prior 
Laws, § 39-1318. 

39-1345. Due and delinquent dates of taxes assessed. — All hospi- 
tal district taxes levied and assessed under the provisions of this act shall 
become due and delinquent and shall attach to and become a lien on the real 
property assessed at the same time as state and county taxes. All the 
provisions of the Idaho Code governing and assessing and collecting state 
and county taxes are hereby made applicable to the assessment and 
collection of said hospital district taxes wherever the same are not incon- 
sistent with the provisions of this act. 

History. 

1965, ch. 173, § 28, p. 340. 

STATUTORY NOTES 

Prior Laws. 173, which is compiled as §§ 39-1318 to 39- 

Former § 39-1345 was repealed. See Prior 1325, 39-1326 to 39-1330, and 39-1331 to 
Laws, § 39-1318. 39-1353. 

Compiler's Notes. 

The words "this act" refer to S.L. 1965, ch. 

39-1346. Treasurer of hospital district — Duties. — It is hereby 
made the duty of the treasurer of the hospital district to keep account with 
such district, to place to the credit of such district all moneys received by 
him from the collector of taxes, or from any other officer charged with the 
collection of taxes as the proceeds of taxes levied by the hospital board or 
from any other sources and of all other moneys belonging to such district 
and to pay over all moneys belonging to the district by legally drawn 
warrants or orders of the district officer entitled to draw the same. 

History. 

1965, ch. 173, § 29, p. 340. 



39-1347 HEALTH AND SAFETY 320 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1346 was repealed. See Prior 
Laws, § 39-1318. 

39-1347. Warrants and drafts — Payment. — The secretary shall 
countersign all drafts and warrants on the district treasury, and no payment 
of district funds shall be made except on draft or warrant countersigned by 
him. He shall not countersign any such draft or warrant until he has found 
that payment has been legally authorized; that the money therefor has been 
duly appropriated and that such appropriation has not been exhausted. 

Such warrants shall be drawn by, and countersigned upon the order of the 
president of the hospital board, or, in his absence, the other member of the 
board; but no drafts or warrants shall be drawn, except upon the appropri- 
ation of the board, nor in excess of the moneys actually in the district 
treasury; except that warrants may be issued in anticipation of the 
collection of taxes, but not in excess of seventy-five per cent (75%) of the 
amount of the levy therefor, nor shall any warrants be issued nor indebt- 
edness incurred in anticipation of such levy. 

When a warrant is presented for payment, if there is money in the 
treasury for the purpose, the treasurer must pay the same and write on the 
face thereof, "paid", the date of payment and sign his name thereto. 

History. 

1965, ch. 173, § 30, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1347 was repealed. See Prior 
Laws, § 39-1318. 

39-1348. Warrants — Inability to pay — Indorsement. — When any 
warrant is presented to the district treasurer for payment, and the same is 
not paid for want of funds, the treasurer must endorse on the back of said 
warrant, "not paid for want of funds," and shall write thereon the day of 
presentation and sign his name thereto, and warrants so endorsed by the 
treasurer shall draw interest at a rate established by the board of the 
hospital district from the date of endorsement until paid. 

History. 

1965, ch. 173, § 31, p. 340; am. 1980, ch. 61, 
§ 6, p. 118. 

STATUTORY NOTES 

Prior Laws. Effective Dates. 

Former § 39-1348 was repealed. See Prior Section 14 of S.L. 1980, ch. 61 declared an 

Laws, § 39-1318. emergency. Approved March 11, 1980. 



321 HOSPITAL LICENSES AND INSPECTION 39-1351 

39-1349. Bulletin board — Notices posted for presentation of 
district warrants. — The district treasurer shall provide himself, at the 
expense of the district, with a bulletin board, across the top of which shall 
be printed or inscribed the words " hospital district warrant bulle- 
tin." It shall be the duty of the treasurer to keep such bulletin board 
conspicuously, securely and permanently in place in his office, and there- 
upon to place in a manner which will insure continuous notice of not less 
than sixty (60) days, all notices issued by him, whether written or printed, 
calling for the presentation of district warrants for payment. 

History. 

1965, ch. 173, § 32, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1349 was repealed. See Prior 
Laws, § 39-1318. 

39-1350. Notice warrants will be paid on presentation. — When- 
ever there is an amount to the credit of the district fund, as shown by the 
books of the treasurer, sufficient to pay the warrant or warrants next 
entitled to payment therefrom, the treasurer shall immediately place in his 
office, as provided in the preceding section, a notice that such warrant or 
warrants will be paid on presentation, stating therein the number and 
series of any such warrants; and the treasurer shall thereupon send, by 
mail, to the record holder of such warrant, in case such holder shall have left 
with the treasurer his address for that purpose, notice that such warrant 
will be paid on presentation. 

History. 

1965, ch. 173, § 33, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1350 was repealed. See Prior 
Laws, § 39-1318. 

39-1351. Interest on warrants — Cessation thirty days from 
posting notice. — Interest on any warrant shall cease on the expiration of 
thirty (30) days from the time of posting of the notice provided for in the last 
preceding section; and for all sums which may be paid by the treasurer, as 
interest on any warrant or warrants, after the expiration of thirty (30) days 
from the earliest date at which there were sufficient funds with which to 
have called and paid the same, such treasurer and his sureties shall be 
liable upon his official bond. 

History. 

1965, ch. 173, § 34, p. 340. 



39-1352 HEALTH AND SAFETY 322 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1351 was repealed. See Prior 
Laws, § 39-1318. 

39-1352. Notation of interest amount on warrant. — When the 
treasurer pays any warrant on which any interest is due, he must note on 
the warrant the amount of interest paid thereon and enter on his account 
the amount of such interest distinct from the principal. 

History. 

1965, ch. 173, § 35, p. 340. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1352 was repealed. See Prior 
Laws, § 39-1318. 

39-1353. Power to issue and sell tax anticipation notes or bonds. 

— Hospital districts created and existing under this chapter shall have the 
further power to issue and sell tax anticipation notes or bonds in the 
manner, and for the purposes and to the extent authorized by chapter 31 of 
title 63 of Idaho Code. 

History. 

1965, ch. 173, § 36, p. 340. 

STATUTORY NOTES 

Prior Laws. Section 40 of S.L. 1965, ch. 173 read: "All 
Former § 39-1353 was repealed. See Prior hospital districts heretofore formed under the 
aws ' s " " provisions of the statutes repealed by this act 
Compiler's Notes. and proceedings of whatsoever nature taken 
Section 37 of S.L. 1965, ch. 173 repealed all by such hospital districts thereunder shall not 
acts or parts of acts in conflict, and specifically . affprtpH hv _ liph rpnpa i q P r0 rPPdmcrq here- 
repealed S.L. 1953, ch. 121; S.L. 1955, ch. 184; be atlected b y sucn repeals. Proceedings nere 
S.L. 1959, ch. 70; S.L. 1961, ch. 59. inafter initiated by such existing hospital 
Section 38 of S.L. 1965, ch. 173 read: "If it districts shall be in compliance with the terms 
should be judicially determined that any part of the act." 
of this act is invalid or unenforceable, such 
determination shall not affect the remaining Effective Dates. 

parts, it being the intention to make this act Section 39 of S.L. 1965, ch. 173 declared an 

and all of its parts severable." emergency. Approved March 18, 1965. 

39- 1353a. Practice of medicine not authorized. — Anything to the 
contrary hereinabove notwithstanding, this act shall not be construed to 
permit or authorize any hospital district or hospital therein in the state of 
Idaho directly or indirectly to engage in the practice of medicine as denned 
in chapter 18, title 54, Idaho Code, which privilege is reserved exclusively to 
persons licensed for that purpose pursuant to chapter 18, title 54, Idaho 
Code. 



323 HOSPITAL LICENSES AND INSPECTION 39-1354 

History. 

1976, ch. 132, § 5, p. 497. 

STATUTORY NOTES 

Compiler's Notes. Effective Dates. 

The term "this act" refers to S.L. 1976, ch. Section 6 of S.L. 1976, ch. 132 declared an 

132, which is codified a §§ 39-318, 39-319, emergency. Approved March 17, 1976. 
39-1331, 39-1339, and this section. 

39-1354. Annexation of territory not having a tax supported 
hospital — Petitions and signatures — Election. — (1) Any area 
contiguous to a hospital district which does not support another tax 
supported hospital may become annexed to the district by petition and 
election. 

(2) A petition for annexation shall comply with the requirements of 
section 39-1320, Idaho Code, in the area seeking to become annexed to the 
hospital district. A true copy of the petition shall be transmitted to the board 
of trustees of the district, and to the board of county commissioners in each 
county affected. The board of trustees of the hospital district may approve or 
disapprove such petition, and shall give notice of its decision to the board of 
county commissioners in each county affected. 

(3) When it has received notice of approval of the board of trustees of the 
district, the board of county commissioners in the county or counties in 
which the petition arose shall enter its order calling for an election on the 
question. The election shall be held in the area proposed to be annexed. 
Notice of the election shall be given, the election shall be conducted, and the 
returns thereof canvassed as provided in sections 39-1323, 39-1324 and 
39-1325, Idaho Code. The ballot shall bear the question: "Shall .... become 
part of the .... hospital district .... Yes" and "Shall .... become part of the .... 
hospital district .... No" each followed by a box in which the voter may 
express his choice by marking a cross. The proposal shall be deemed 
approved only if the majority of the votes cast is in the affirmative. 

(4) If the proposal has been approved at the election, the board of county 
commissioners in each county in which the district is located following 
annexation shall enter its order amending the boundaries of the district, 
and a copy shall be transmitted to the board of trustees of the hospital 
district. Annexation shall be effective as of the date of the last such order 
entered. 

(5) Such other notices as may be required by law shall be filed by the 
board of trustees of the hospital district with the state tax commission 
within ten (10) days of the effective date of the change, including a legal 
description and map of the altered boundaries. 

(6) Addition of new territory to an existing hospital district shall not be 
considered an initial establishment. The existing board of trustees shall 
continue to serve for the term for which elected. When a vacancy occurs, 
appointment shall be made as provided in section 39-1326, Idaho Code. 



39-1355 HEALTH AND SAFETY 324 

History. 

I.C., § 39-1354, as added by 1993, ch. 137, 
§ 3, p. 337. 

STATUTORY NOTES 

Cross References. Compiler's Notes. 

State tax commission, § 63-101. The reference to § 39-1326, Idaho Code, at 

Prior Laws ^ e en( * °f SUDsec ti° n (6) is incorrect. Appoint- 

Former §§' 39-1354 to 39-1356, which com- J"** 8 * /™ TJS?^ * re g° verned ** the 

prised S.L. 1955, ch. 184, §§ 1 to 3, were terms of § 39 " 1329 > Idaho Code ' 
repealed by S.L. 1965, ch. 173, § 37. 

39-1355. Existing tax supported hospitals may consolidate. — 

The ownership and operation of any municipal, city/county, county, district, 
or tax supported community hospital or medical clinic may be consolidated 
with an established hospital district by majority vote of the qualified 
electors of the established hospital district and of the political subdivision 
having jurisdiction over such other tax supported hospital according to 
procedure set forth in section 39-1354, Idaho Code. A true copy of the 
petition and the established hospital district board's notice of approval or 
disapproval shall be sent to the governing body of the political subdivision 
having jurisdiction over a petitioning hospital. A true copy of that petition 
shall, at the same time, be sent to the governing body of the nonpetitioning 
hospital. When the notice carries the approval of the boards, or other 
governing bodies of both hospitals, that governing body shall conduct the 
election and give notice of the results to the hospital district board and the 
relevant boards of county commissioners as provided in section 39-1354, 
Idaho Code. As a result of any such consolidation, the boundaries of the 
hospital district remaining after consolidation shall be expanded to include 
the political subdivision which previously had jurisdiction over the consol- 
idated hospital or medical clinic. 

History. 

I.C., § 39-1355, as added by 1993, ch. 137, 
§ 4, p. 337. 

STATUTORY NOTES 

Prior Laws. 

Former § 39-1355 was repealed. See Prior 
Laws, § 39-3154. 

39-1356. Equalization of levy between consolidating hospitals. — 

(1) When two (2) districts' hospitals or medical clinics have agreed to 
consolidate, the tax levies of the two (2) hospitals will be equalized in the 
following manner: the certified budget figures from ad valorem taxes of the 
district will be added together. The resulting figure will provide the base 
budget amount for the new consolidated district. In any such consolidation, 
the existing bonded debt of any district or districts shall not become the 
obligation of the proposed consolidated hospital district. The debt shall 
remain an obligation of the property which incurred the indebtedness. 



325 HOSPITAL LICENSES AND INSPECTION 39-1357 

History. 

I.C., § 39-1356, as added by 1993, ch. 137, 
§ 5, p. 337. 

STATUTORY NOTES 

Prior Laws. Compiler's Notes. 

Former § 39-1356 was repealed. See Prior This section was enacted with a subsection 

Laws, § 39-1354. (1), but no (2). 

39-1356A. Hospital districts in more than one county. [Repealed.] 

STATUTORY NOTES 

Compiler's Notes. 39-1356A as added by 1961, ch. 59, § 1 p. 87, 

This section, which comprised I.C., was repealed by S.L. 1965, ch. 173, § 37. 

39-1357. Adjustment of boundary lines or consolidation of hospi- 
tal districts. — When there are two (2) or more hospital districts, which 
have at least one (1) common boundary, the boards of trustees of the hospital 
districts, meeting together, may determine that it is in the best interest of 
the qualified electors and prospective hospital patients that the boundary 
lines be adjusted or that the districts be consolidated, as herein provided. 

The boards of trustees shall jointly prepare a petition describing the 
boundaries of the existing hospital districts, the names of the existing 
hospital districts, and praying for the reorganization of the territory therein 
described as one (1) or more hospital districts to be known as the ".... 
hospital district or districts" and with boundaries as set forth in the petition. 

The petition shall be signed by the chairpersons of the hospital boards 
upon majority approval of the respective boards involved in the boundary 
adjustment or consolidation. 

The petition shall be forwarded to the clerk of the board of county 
commissioners in each of the counties affected who shall verify the signa- 
tures, and shall file the petition. Thereupon, the board of county commis- 
sioners in each of the counties affected shall proceed with the hearing and 
resolution as outlined in sections 39-1320, 39-1321 and 39-1322, Idaho 
Code, and an election in the manner required for the establishment of a 
hospital district. 

In the order granting the petition and adjusting the boundaries or 
establishing consolidation, the board of county commissioners in all counties 
affected shall certify the new boundaries and the name of the district or 
districts. 

A copy of the order shall be transmitted to the board of trustees of the 
hospital districts involved. 

Such other notices as may be required by law shall be filed by the board 
of trustees of the district, including a legal description and map of altered 
boundaries to be filed with the state tax commission within ten (10) days of 
the effective date of the change. 

Following boundary adjustment, the board of county commissioners 
within five (5) days shall take action to reaffirm members of the board of 
trustees, or to appoint members of the board or boards, who shall be chosen 



39-1358 HEALTH AND SAFETY 326 

from the members of the boards initiating the boundary adjustment to the 
extent possible. These trustees shall serve until the next annual election of 
trustees or until their successors are elected and qualified as provided in 
section 39-1326, Idaho Code. The board or boards of trustees shall be sworn 
by a member of the board of county commissioners. 

Following a consolidation, the board of county commissioners within five 
(5) days shall appoint the members of the first board of trustees, who shall 
be chosen from the members of the boards of the consolidated districts and 
who shall serve until the next annual election of trustees or until their 
successors are elected and qualified. The board shall be sworn by a member 
of the board of county commissioners. 

History. 

I.C., § 39-1357, as added by 1993, ch. 137, 
§ 6, p. 337. 

STATUTORY NOTES 

Cross References. 1955, § 4 was repealed by S.L. 1965, ch. 173, 

State tax commission, § 63-101. § 37. 

Prior Laws. 

Former § 39-1357, which comprised S.L. 

39-1358 — 39-1389. Hospital districts established — Procedure. 
[Repealed.] 

STATUTORY NOTES 

Compiler's Notes. redemption, shall be determined by the board. 

These sections, which comprised S.L. 1985, If the board so determines, such bonds may be 

§§ 5 to 35, were repealed by S.L. 1965, ch. redeemable prior to maturity, upon payment 

173, § 37. of a premium not exceeding three per cent 

S.L. 1970, ch. 133, § 3, purported to amend (3%) of the net principal thereof. Said bonds 
§ 39-1373, which had been repealed by S.L. shall be executed in the name of, and on 
1965, ch. 173, § 37. The amended section behalf of, the district and signed by the chair- 
read: "To carry out the purposes of this act man of the board with the seal of the district 
and to pay the necessary expenses of the affixed thereto, and attested by the secretary 
district, the board is hereby authorized to of the board. Said bonds shall be in such 
issue negotiable coupon bonds of the district. denominations as the board shall determine, 
Bonds shall bear interest, payable semi-annu- and the bonds and coupons thereto attached 
ally, and shall be due and payable serially shall be payable to bearer. Interest coupons 
either annually or semi-annually, commenc- shall bear the original or facsimile signature 
ing not later than three (3) years and extend- of the chairman of the board. In all other 
ing not more than twenty (20) years from respects, said bonds shall be issued, sold and 
date. The form and terms of said bonds, paid in accordance with the provisions of the 
including provisions for their payment and Municipal Bond Law of the state of Idaho." 

39-1390. Reports to law enforcement agencies of certain types of 
injuries. — (1) As soon as treatment permits, any person operating a 
hospital or other medical treatment facility, or any physician, resident on a 
hospital staff, intern, physician assistant, nurse or emergency medical 
technician shall notify the local law enforcement agency of that jurisdiction 
upon the treatment of or request for treatment of a person when the 
reporting person has reason to believe that the person treated or requesting 
treatment has received: 



327 HOSPITAL LICENSES AND INSPECTION 39-1391a 

(a) Any injury inflicted by means of a firearm; or 

(b) Any injury indicating that the person may be a victim of a criminal 
offense. 

(2) The report provided to the law enforcement agency pursuant to 
subsection (1) of this section shall include the name and address of the 
injured person, the character and extent of the person's injuries, and the 
medical basis for making the report. 

(3) Any person operating a medical facility, or any physician, resident on 
a hospital staff, intern, physician assistant, nurse or emergency medical 
technician shall be held harmless from any civil liability for his reasonable 
compliance with the provisions of this section. 

History. 

I.C., § 39-1390, as added by 1991, ch. 167, 
§ 1, p. 407; am. 1995, ch. 169, § 1, p. 651. 

STATUTORY NOTES 

Prior Laws. 1959, ch. 70, § 3, p. 151, was repealed by S.L. 

Former § 39-1390, which comprised S.L. 1965, ch. 173, § 37. 

39-1391. Emergency treatment without admission — Liability. — 

Any hospital licensed in this state may provide to any person appearing or 
represented to be seriously sick or injured, without admission of such person 
to the hospital and without the immediate presence of a licensed physician 
and surgeon, such emergency treatment and care or, if such hospital does 
not maintain and operate an emergency department, such first aid services 
and care as may be indicated, considering the facilities and personnel 
available. Neither any hospital nor its agents or employees providing such 
services, pursuant to standby orders duly promulgated by the medical staff 
of said hospital, shall be deemed, by so doing, to be engaged in the practice 
of medicine, nor shall any such hospital, its agents or employees, or any 
physician be held liable in any civil action arising out of the furnishing of 
such services and care, in the absence of gross negligence under the existing 
circumstances. 

History. 

1973, ch. 82, § 1, p. 130. 

39-1391a. Emergency treatment not to constitute admission. — 

The furnishing of emergency or first aid services and care as permitted by 
section 39-1391 [, Idaho Code,] shall not in and of itself constitute admission 
to such hospital of the person receiving such services and care, nor shall 
such hospital, its employees, or any physician be subject to civil suit for 
abandonment or failure to provide care if, upon examination by a licensed 
physician and surgeon, it is determined by such physician, in the good faith 
exercise of his professional judgment, that the admission of any person 
receiving or presented for such services and care is not advisable or 
required. 



39-1391b HEALTH AND SAFETY 328 

History. 

1973, ch. 82, § 2, p. 130. 

STATUTORY NOTES 

Compiler's Notes. compiler to conform to the statutory citation 

The bracketed insertion was added by the style. 

39- 139 lb. Emergency treatment by hospital not required — Dis- 
crimination prohibited. — Nothing in this act shall be deemed to require 
any hospital to provide facilities or personnel for the furnishing of such 
emergency or first aid services and care or to furnish such services and care, 
without admission by a licensed physician and surgeon, to any person who 
may request the same; provided, however, that emergency or first aid 
services and care shall not be refused to any person by reason of race, creed, 
national origin or financial ability to pay therefor. 

History. 

1973, ch. 82, § 3, p. 130. 

STATUTORY NOTES 

Compiler's Notes. 82, which is compiled as §§ 39-1391 to 39- 

The words "this act" refer to S.L. 1973, ch. 1391c. 

JUDICIAL DECISIONS 

Cited in: St. Alphonsus Regional Medical 
Ctr., Ltd. v. Twin Falls County, 112 Idaho 309, 
732 P.2d 278 (1987). 

39- 1391c. Immunity from civil liability. — Any licensed physician 
and surgeon shall be conclusively presumed to be qualified to undertake and 
to furnish any emergency medical or surgical care and treatment, regardless 
of the specialty training or skills which might otherwise be preferred for 
care and treatment of the particular patient, whenever, in the good faith 
judgment of such physician and surgeon, the condition and best interests of 
the patient require such physician and surgeon to undertake such care and 
treatment, and, in the absence of gross negligence under the existing 
circumstances, no physician so proceeding nor any hospital where such care 
and treatment is provided shall be held liable in any civil action arising out 
of the furnishing of such emergency care and treatment. 

Nothing in this act shall be deemed to require any physician to undertake 
to or to furnish medical care and treatment, whether on an emergency basis 
or otherwise, to any person requesting or presented for such care and 
treatment, nor shall any such physician be held liable in any civil action by 
reason of his refraining from the furnishing of such care and treatment or 
referring the same to a specialist or other physician believed by him to be 
more uniquely or appropriately experienced and qualified. Neither shall any 
physician responding to any request for emergency care be held liable in any 
civil action by reason of failure to so respond with any greater promptness 
than may be reasonably required or expected, under the existing circum- 



329 HOSPITAL LICENSES AND INSPECTION 39-1392 

stances, of physicians and surgeons practicing in the particular community 
where such care and treatment is to be furnished. 

History. 

1973, ch. 82, § 4, p. 130. 

STATUTORY NOTES 

Compiler's Notes. 82, which is compiled as §§ 39-1391 to 39- 

The words "this act" refer to S.L. 1973, ch. 1391c. 

JUDICIAL DECISIONS 

Analysis 

Application. 
Legislative intent. 
Liability of physician. 
Nature of relationship. 

Application. rel. Eby v. Newcombe, 116 Idaho 838, 780 P.2d 

This section applies only to emergency or 589 (1989). 

first aid situations; it does not apply when an _ . , .... f p , . . 

ordinary physician/patient relationship has Thi s actwas meantTo provide that a phy- 

been established. Eby ex rel. Eby v. s i c ian rendering emergency treatment or first 

Newcombe, 116 Idaho 838, 780 P.2d 589 a id services shall not be subject to liability 

(1989). therefor in the absence of gross negligence. 

. Eby ex rel. Eby v. Newcombe, 116 Idaho 838, 

Legislative Intent. 780 P2 d 539 (1989). 

The legislature meant for the phrase "or 
otherwise", as used in the second paragraph Nature of Relationship. 
of this section, to refer to "first aid services"; Where the pleadings, depositions, admis- 
there is no indication based upon a review of sions and affidavits before the trial court 
the statutory heading that the legislature demonstrated a genuine issue as to the mate- 
utilized in referring to this section, that the rial fact concerning whether a physician saw 
legislature intended for that phrase to refer to a patient pursuant to an ordinary physician/ 
treatment rendered under an ordinary doctor/ patient relationship or whether he only ren- 
patient relationship, and such an interpreta- dered emergency treatment or first aid ser- 
tion of this section comports with §§ 39-1391, vices to that patient, the trial court erred in 
39-1391a and 39-1391b, wherein similar pro- granting the physician's motion for summary 
tection is given to hospitals rendering emer- judgment. Eby ex rel. Eby v. Newcombe, 116 
gency treatment or first aid services. Eby ex Idaho 838, 780 P.2d 589 (1989). 

RESEARCH REFERENCES 

Am. Jur. — 40 Am. Jur. 2d, Hospitals and 
Asylums, § 15. 

39-1392. Statement of policy. — To encourage research, discipline and 
medical study by certain health care organizations for the purposes of 
reducing morbidity and mortality, enforcing and improving the standards of 
medical practice in the state of Idaho, certain records of such health care 
organizations shall be confidential and privileged as set forth in this 
chapter. 

History. 

1973, ch. 265, § 1, p. 545; am. 1997, ch. 171, 
§ 1, p. 485. 



39-1392a HEALTH AND SAFETY 330 

JUDICIAL DECISIONS 

Analysis 

Hospital tumor board. 
Legislative intent. 

Hospital Tumor Board. Legislative Intent. 

Applying privilege to activity of hospital The legislature intended to establish a 
SL b n°t ar o d f f cf^Ple^Sl "road privilege for the records and proceed- 
recommendation for surgery was not inconsis- in S s of hospital medical staff committees 
tent with the purposes set forth in the statute, which extends to all discussions and proceed- 
since dealing with actual current patient ings by hospital staff committees, conducted 
cases, rather than hypothetical or former case f or the purpose of research, discipline or med- 
histories, could result in immediate, prag- ical stud the privilege statutes were in- 

matic benefits to patients from such medical fOTW a j fn Twn ,nJ n u mo j° «„«+«„««„« «* 

studies and educational processes; the board's £ nde + d *? V Toyid * broader ^ P^ections of con- 
activities in this instance came within the ndentiahty, privilege and immunities than 
scope of §§ 39-1392 to 39-1392e. Murphy v. are afforded by mere peer review statutes. 
Wood, 105 Idaho 180, 667 P.2d 859 (Ct. App. Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 
1983). (Ct. App. 1983). 

39- 1392a. Definitions. — The following terms shall have the following 
meanings when used in this section: 

(1) "Emergency medical services personnel" means emergency medical 
services providers certified by the department of health and welfare pursu- 
ant to section 56-1011 et seq., Idaho Code, and ambulance-based clinicians 
as denned in the rules governing emergency medical services as promul- 
gated by the department of health and welfare. 

(2) "Group medical practice" means a partnership, corporation, limited 
liability company, or other association formed for the purpose of offering 
health care services through physicians and other licensed or otherwise 
authorized health care providers who are partners, shareholders, members, 
employees, or contractors of such group medical practice. 

(3) "Health care organization" means a hospital, in-hospital medical staff 
committee, medical society, managed care organization, licensed emergency 
medical service, group medical practice, or skilled nursing facility. 

(4) "Hospital" means a facility in Idaho licensed under sections 39-1301 
through 39-1314, Idaho Code, and denned in section 39-1301(a)(l), Idaho 
Code. 

(5) "In-hospital medical staff committees" means any individual doctor 
who is a hospital staff member, or any hospital employee, or any group of 
such doctors and/or hospital employees, who are duly designated a commit- 
tee by hospital staff bylaws, by action of an organized hospital staff, or by 
action of the board of directors of a hospital, and which committee is 
authorized by said bylaws, staff or board of directors, to conduct research or 
study of hospital patient cases, or of medical questions or problems using 
data and information from hospital patient cases. 

(6) "Licensed emergency medical service" means an ambulance service or 
a nontransport service licensed by the department of health and welfare 
pursuant to section 56-1011 et seq., Idaho Code. 

(7) "Managed care organization" means a public or private person or 
organization which offers a managed care plan. 

(8) "Managed care plan" means a contract of coverage given to an 
individual, family or group of covered individuals pursuant to which a 



331 HOSPITAL LICENSES AND INSPECTION 39- 1392a 

member is entitled to receive a denned set of health care benefits through an 
organized system of health care providers in exchange for defined consider- 
ation and which requires the member to use, or creates financial incentives 
for the member to use, health care providers owned, managed, employed by 
or under contract with the managed care organization. 

(9) "Medical society" means any duly constituted, authorized and recog- 
nized professional society or entity made up of physicians licensed to 
practice medicine in Idaho, having as its purpose the maintenance of high 
quality in the standards of health care provided in Idaho or any region or 
segment of the state, operating with the approval of the Idaho state board of 
medicine, or any official committee appointed by the Idaho state board of 
medicine. 

(10) "Patient care records" means written or otherwise recorded, pre- 
served and maintained records of the medical or surgical diagnostic, clinical, 
or therapeutic care of any patient treated by or under the direction of 
licensed professional personnel, including emergency medical services per- 
sonnel, in every health care organization subject to this act, whether as an 
inpatient or outpatient of the health care organization. 

(11) "Peer review" means the collection, interpretation and analysis of 
data by a health care organization for the purpose of bettering the system of 
delivery of health care or to improve the provision of health care or to 
otherwise reduce patient morbidity and mortality and improve the quality of 
patient care. Peer review activities by a health care organization include, 
without limitation: 

(a) Credentialing, privileging or affiliating of health care providers as 
members of, or providers for, a health care organization; 

(b) Quality assurance and improvement, patient safety investigations 
and analysis, patient adverse outcome reviews, and root-cause analysis 
and investigation activities by a health care organization; and 

(c) Professional review action, meaning an action or recommendation of a 
health care organization which is taken or made in the conduct of peer 
review, that is based on the competence or professional conduct of an 
individual physician or emergency medical services personnel where such 
conduct adversely affects or could adversely affect the health or welfare of 
a patient or the physician's privileges, employment or membership in the 
health care organization or in the case of emergency medical services 
personnel, the emergency medical services personnel's scope of practice, 
employment or membership in the health care organization. 

(12) "Peer review records" means all evidence of interviews, reports, 
statements, minutes, memoranda, notes, investigative graphs and compila- 
tions and the contents thereof, and all physical materials relating to peer 
review of any health care organization. "Peer review records" does not mean 
or include patient care records; provided however, that the records relating 
to the identification of which particular patient care records were selected 
for, or reviewed, examined or discussed in peer review by a health care 
organization and the methodology used for selecting such records shall be 
considered peer review records. 

(13) "Skilled nursing facility" means a facility licensed under chapter 13, 
title 39, Idaho Code, to provide skilled care to recipients. 



39-1392b HEALTH AND SAFETY 332 

History. 2003, ch. 244, § 1, p. 628; am. 2004, ch. 134, 

1973, ch. 265, § 2, p. 545; am. 1984, ch. 113, § 1, p. 454; am. 2005, ch. 103, § 1, p. 324. 
§ 1, p. 257; am. 1997, ch. 171, § 2, p. 485; am. 

STATUTORY NOTES 

Cross References. to S.L. 2003, ch. 244, which is codified as 

State board of medicine, § 54-1805. §§ 39-1392a to 39-1392d, 39-1393, and 54- 

Compiler's Notes. 1818. 
The term "this act" in subsection (10) refers 

39- 1392b. Records confidential and privileged. — Except as pro- 
vided in section 39-1392e, Idaho Code, all peer review records shall be 
confidential and privileged, and shall not be directly or indirectly subject to 
subpoena or discovery proceedings or be admitted as evidence, nor shall 
testimony relating thereto be admitted in evidence, or in any action of any 
kind in any court or before any administrative body, agency or person for 
any purpose whatsoever. No order of censure, suspension or revocation of 
licensure, or of a certification in the case of emergency medical services 
personnel, or health care organization privilege of any physician licensed to 
practice medicine in Idaho shall be admissible in any civil proceeding 
seeking damages or other civil relief against the physician, emergency 
medical services personnel, or health care organization which may be a 
defendant in said cause. However, this section shall not prohibit or other- 
wise affect the use of documents, materials or testimony in health care 
organization proceedings, nor shall it prohibit or otherwise affect the 
dissemination, for medical purposes, of information contained in such 
documents or materials or the conclusions and findings of such health care 
organization. This section shall not affect the admissibility in evidence in 
any action or proceeding of the patient care records of any patient. 

History. § 3, p. 485; am. 2003, ch. 244, § 2, p. 628; am. 

1973, ch. 265, § 3, p. 545; am. 1997, ch. 171, 2004, ch. 134, § 2, p. 454. 

STATUTORY NOTES 

Cross References. 

Confidential relations and communica- 
tions, § 9-203. 

JUDICIAL DECISIONS 

Analysis 

Hospital tumor board meetings. 
Legislative intent. 

Hospital Tumor Board Meetings. matic benefits to patients from such medical 

Applying privilege to activity of hospital studies and educational processes; the board's 

tumor board in discussing current care and activities in this instance came within the 

treatment of a cancer patient and making a scope of §§ 39-1392 to 39-1392e. Murphy v. 

recommendation for surgery was not inconsis- Wood, 105 Idaho 180, 667 P.2d 859 (Ct. App. 

tent with the purposes set forth in the statute, 1983). 

since dealing with actual current patient Order of court which held inadmissible all 

cases, rather than hypothetical or former case records and minutes of hospital tumor board 

histories, could result in immediate, prag- meeting at which defendant physicians 



333 HOSPITAL LICENSES AND INSPECTION 39-1392(1 

sought and received opinion of board concern- ings of hospital medical staff committees 

ing recommended treatment of plaintiff in which extends to all discussions and proceed- 

malpractice action, and which, in addition, ings by hospital staff committees, conducted 

held all testimony relating to such meeting to for the purpose of research, discipline or med- 

be inadmissible, was proper Murphy v. Wood, ical study; the privilege statutes were in- 

105 Idaho 180, 667 P2d 859 (Ct. App. 1983). tended to provide broader protections of con- 
fidentiality, privilege and immunities than 

Legislative Intent. are afforded by mere peer review statutes. 

The legislature intended to establish a Murphy v. Wood, 105 Idaho 180, 667 P.2d 859 

broad privilege for the records and proceed- (Ct. App. 1983). 

39-1392c. Immunity from civil liability. — The furnishing of infor- 
mation or provision of opinions to any health care organization or the 
receiving and use of such information and opinions shall not subject any 
health care organization or other person to any liability or action for money 
damages or other legal or equitable relief. Custodians of such records and 
persons becoming aware of such data and opinions shall not disclose the 
same except as authorized by rules adopted by the board of medicine or as 
otherwise authorized by law. Any health care organization may receive such 
disclosures, subject to an obligation to preserve the confidential privileged 
character thereof and subject further to the requirement that such requests 
shall be made and such use shall be limited to aid the health care 
organization in conducting peer review. 

History. 

1973, ch. 265, § 4, p. 545; am. 1997, ch. 171, 
§ 4, p. 485; am. 2003, ch. 244, § 3, p. 628. 

STATUTORY NOTES 

Cross References. 

State board of medicine, § 54-1805. 

JUDICIAL DECISIONS 

Credentialing. pital privileges to an unqualified physician. 

This section does not grant immunity to a Harrison v. Binnion, 147 Idaho 645, 214 P.3d 

health care organization for making a negli- 531 (2009). 
gent credentialing decision, in granting hos- 

39-1392d. Property of health care organization. — All peer review 
records of a health care organization shall be the property of the health care 
organization concerned which obtains or compiles the same. A health care 
organization may provide peer review records to persons or entities that 
perform accreditation, certification or quality assurance review or evalua- 
tion of the health care organization. The provision of any peer review 
records to such persons or entities shall not be deemed to be a waiver by the 
health care organization of any peer review privilege. Persons and entities 
receiving peer review records shall preserve the confidential privileged 
character thereof and such persons and entities shall not be subject to 
subpoena or order compelling production of peer review records. Nothing in 
this section shall be deemed to require the health care organization to 
provide persons or entities with peer review records. A health care organi- 
zation may provide peer review records to persons or entities with whom the 
health care organization is affiliated through any common ownership 



39-1392e HEALTH AND SAFETY 334 

interest or by contract, which affiliation or contract includes the person's or 
entity's involvement in the peer review process or the provision of any 
management or administrative services to the health care organization. The 
provision of peer review records to such persons or entities shall not be 
deemed to be a waiver by the health care organization of any peer review 
privilege. Such persons and entities receiving peer review records shall 
preserve the confidential privileged character thereof, and such persons and 
entities shall not be subject to any subpoena or order compelling production 
of peer review records. Nothing in this section shall be deemed to require the 
health care organization to provide such persons or entities with peer review 
records. This section shall in no way impair the rights of individuals 
conducting such research or studies in the exercise of any right or the 
discharge of any legitimate responsibility which they may have in connec- 
tion with such research or studies and the results thereof. Nothing in this 
act shall be construed as restricting or altering the rights of inspection and 
copying by patients and their duly authorized representatives with respect 
to such patients' official patient care records, which right of copying and 
inspection and use of patient care records and their contents in appropriate 
judicial proceedings is unaltered by this enactment. 

History. 

1973, ch. 265, § 5, p. 545; am. 1997, ch. 171, 
§ 5, p. 485; am. 2003, ch. 244, § 4, p. 628. 

STATUTORY NOTES 

Compiler's Notes. refer to S.L. 1973, ch. 265, which is compiled 

The words "this act" in the last sentence as §§ 39-1392 to 39-1392e. 

39-1392e. Limited exceptions to privilege and confidentiality. — 

(a) In the event of a claim or civil action against a physician, emergency 
medical services personnel, a hospital or a skilled nursing facility arising 
out of a particular physician-patient, emergency medical services personnel- 
patient, hospital-patient relationship, or skilled nursing facility-patient, or 
which concerns the sufficiency of the delivery of particular health care to a 
specific patient, any health care organization having information of the kind 
covered by section 39- 1392b, Idaho Code, shall, when interrogated as 
hereinafter provided, advise any such claimant who is or was such a patient 
or who, in a representative capacity, acts on behalf of such patient or his 
heirs, as follows: 

(1) Whether it has conducted or has in progress an inquiry, proceeding or 
disciplinary matter regarding the quality or propriety of the health care 
involved, which concerns the subject patient while he was under the care 
or responsibility of a member of such health care organization or while he 
was a patient in such hospital or facility; and, if so, 

(2) Whether disposition of any kind resulted or will result therefrom; and, 
if so, 

(3) What the disposition was, or, if not yet determined, approximately 
when it will be determined. 

Such disclosure of information shall be limited to the health care organiza- 
tion's actions in connection with the physician, emergency medical services 



335 HOSPITAL LICENSES AND INSPECTION 39-1392e 

personnel, hospital or skilled nursing facility against whom such claim is 
asserted. 

(b) Such a claimant shall likewise be entitled to inquire of such health 
care organization respecting the names and addresses of persons who such 
health care organization knows to have direct knowledge of the provision of 
the health care in question, such inquiry to be limited, however, to the 
particular patient and the particular times and occasions germane to the 
specific occurrences on which the claim is based; provided, names shall not 
be disclosed respecting persons who have gained secondary knowledge or 
formed opinions respecting the matter solely by participating as witnesses, 
officials, investigators or otherwise on, for, or in connection with such a 
health care organization committee, staff, governing board or the state 
board of medicine. 

(c) Such limited, conditional discovery and disclosure of information as 
provided above shall be allowed only in response to inquiries directed to 
such a health care organization, and then only if initially propounded by a 
claimant of the type above described. If the matter is in litigation, inquiry 
may be by customary means of discovery under the Idaho rules of civil 
procedure, or, if pending in a United States court, then under discovery as 
allowed by its applicable rules; provided, pendency of the claim in the 
United States court or before any other tribunal shall not operate to broaden 
the exception to the rules of privilege, confidentiality and immunity set 
down in this act. 

(d) Such disclosures may be voluntarily made without judicial order or 
formal discovery if all disciplined, accused or investigated physicians or 
emergency medical services personnel consent thereto, and if privileged or 
confidential information regarding any other patient, physician, emergency 
medical services personnel, or person will not be disclosed thereby. When 
the terms of this paragraph are complied with, such voluntary disclosures 
may be made without civil liability therefor as if in due response to valid 
judicial process or order. 

(e) If any claimant makes such inquiry of any such health care organi- 
zation, he shall be deemed to have consented to like inquiry and disclosure 
rights for the benefit of all parties against whom he asserts such claim or 
brings such suit or action, and all other persons who are parties to such 
action, and thereafter all such persons and parties may invoke the provi- 
sions of this section, seeking and securing specific information as herein 
provided for the benefit of such claimant, to the same extent as the same is 
allowed to such claimant. 

(f) If any physician, emergency medical services personnel, patient, 
person, organization or entity whose conduct, care, chart, behavior, health 
or standards of ethics or professional practice is the subject of investigation, 
comment, testimony, dispositive order of any kind or other written or verbal 
utterance or publication or act of any such health care organization or any 
member or committee thereof in the course of research, study, disciplinary 
proceeding or investigation of the sort contemplated by this act, makes 
claim or brings suit on account of such health care organization activity, 
then, in the defense thereof, confidentiality and privilege shall be deemed 
waived by the making of such claim, and such health care organization and 



39-1392e 



HEALTH AND SAFETY 



336 



the members of their staffs and committees shall be allowed to use and 
resort to such otherwise protected information for the purpose of presenting 
proof of the facts surrounding such matter, and this provision shall apply 
whether such claim be for equitable or legal relief or for intentional or 
unintentional tort of any kind and whether pressed by a patient, physician, 
emergency medical services personnel, or any other person, but such waiver 
shall only be effective in connection with the disposition or litigation of such 
claim, and the court shall, in its discretion, enter appropriate orders 
protecting, and as fully as it reasonably can do so, preserving the confiden- 
tiality of such materials and information. 



History. 

1973, ch. 265, § 6, p. 545; am. 1997, ch. 171, 



§ 6, p. 485; am. 2004, ch. 134, § 3, p. 454; am. 
2005, ch. 103, § 2, p. 324. 



STATUTORY NOTES 



Cross References. 

State board of medicine, § 54-1805. 
Compiler's Notes. 

The words "this act", at the end of subsec- 



tion (c) and in the first sentence in subsection 
(f), refer to S.L. 1973, ch. 265, which is com- 
piled as §§ 39-1392 to 39-1392e. 



JUDICIAL DECISIONS 

Analysis 



Consent to disclosure. 
Construction. 
Disclosure to claimant. 
Information held privileged. 
Waiver. 



Consent to Disclosure. 

Subsection (e) of this section merely pro- 
vides that if a claimant makes inquiry, under 
subsection (b) of this section, for disclosure of 
the names of persons having direct knowledge 
concerning his case, he has consented to dis- 
closure of such information to other parties; it 
did not entitle doctors defending malpractice 
action to disclosure of any of the records or 
minutes of a hospital tumor board meeting 
nor permit them to present evidence at trial 
that the board recommended that the plaintiff 
patient undergo an operation. Murphy v. 
Wood, 105 Idaho 180, 667 P.2d 859 (Ct. App. 
1983). 

Construction. 

Subsection (d) of this section must be read 
in conjunction with subsection (a). Murphy v. 
Wood, 105 Idaho 180, 667 P.2d 859 (Ct. App. 
1983). 

Disclosure to Claimant. 

Where plaintiff in malpractice action op- 
posed disclosure of evidence concerning hos- 
pital tumor board meeting at which plaintiff's 
condition was discussed and surgery recom- 
mended, defendant physicians could not com- 
pel disclosure under subsections (a) and (d) of 
this section since subsection (a) only confers 



the right to disclosure of such information on 
the "claimant" in an action against a hospital 
or physician. Murphy v. Wood, 105 Idaho 180, 
667 P.2d 859 (Ct. App. 1983). 

Information Held Privileged. 

Order of court which held inadmissible all 
records and minutes of hospital tumor board 
meeting at which defendant physicians 
sought and received opinion of board concern- 
ing recommended treatment of plaintiff in 
malpractice action, and which, in addition, 
held all testimony relating to such meeting to 
be inadmissible, was proper; however, since it 
would be unfair to prevent the physicians 
from showing that they had consulted with 
the board while allowing the plaintiff to argue 
that physicians had failed to comply with 
local standard of care by not seeking a second 
opinion before operating, an order must be 
entered to prevent the plaintiff from so argu- 
ing. Murphy v. Wood, 105 Idaho 180, 667 P.2d 
859 (Ct. App. 1983). 

Waiver. 

Where a patient whose care was the subject 
of discussion by a hospital tumor board filed a 
lawsuit against the board on account of its 
"activity," i.e., its alleged recommendation 
that surgery be performed, and also filed suit 



337 HOSPITAL LICENSES AND INSPECTION 39-1393 

against two doctors, who were being sued not Where patient brought malpractice action 

"on account of" any activity of the tumor against hospital and against tumor board 

board but because of the alleged negligence of which all dl discussed patient's case and 

the doctors independent from any board ac- recommended the board and h ital 

tivity, that part of the suit which was directed j j ■ r u j» 

against the doctors did not activate the could use the records and minutes of board s 

waiver provisions of subsection (£) and did not meeting in their own defense under subsec- 

provide a basis for the doctors to compel tion (f) of this section, but until they chose to 

disclosure of the board's records. Murphy v. do so such information was protected from 

Wood, 105 Idaho 180, 667 P2d 859 (Ct. App. disclosure. Murphy v. Wood, 105 Idaho 180, 

1983). 667 P.2d 859 (Ct. App. 1983). 

39-1392f. Peer review. — Every hospital subject to this act shall cause 
the hospital's medical staff to organize in-hospital medical staff committees 
which shall have the responsibility of reviewing the professional practices of 
members of the hospital's medical staff for the purpose of reducing morbid- 
ity and mortality, and for the improvement of the care of patients in the 
hospital. This review shall include, but not be limited to, the quality and 
necessity of care provided to patients. 

History. 

I.C., § 39-1392f, as added by 1986, ch. 95, 
§ 1, p. 273. 

STATUTORY NOTES 

Compiler's Notes. 

The words "this act" refer to S.L. 1986, ch. 
95, which is compiled as this section. 

39-1393. Notification of professional review action imposed upon 
physician or emergency medical services personnel. — (1) Any 

health care organization in this state that is by law required to conduct peer 
review or which voluntarily formally elects to conduct professional review 
actions shall notify the board of medicine of professional review actions 
taken against physicians licensed in Idaho required to be reported as 
provided in this section. Such reports shall be made to the board of medicine 
within fifteen (15) days of completion of the professional review action by the 
health care organization. For emergency medical services personnel, such 
reports shall be made to the department of health and welfare within fifteen 
(15) days of completion of the professional review action by the health care 
organization. Such required reports shall be made on forms approved by the 
board of medicine for reports concerning physicians, or the department of 
health and welfare for reports concerning emergency medical services 
personnel, consistent with the reporting requirements of this section. The 
reporting obligation shall not be stayed by the filing of any court proceeding 
unless otherwise ordered by the court. 

(2) A health care organization in Idaho shall report to the board of 
medicine if it: 

(a) Takes a professional review action against a physician licensed in 
Idaho and imposes a sanction of the type included in subsection (3) of this 
section which lasts longer than thirty (30) days; or 

(b) Accepts a voluntary sanction by a physician licensed in Idaho of the 
type identified in subsection (3) of this section while the physician is 



39-1393 HEALTH AND SAFETY 338 

under investigation or to avoid investigation by the health care organiza- 
tion relating to the professional competence or professional conduct of the 
physician or in exchange for the health care organization not conducting 
such an investigation or initiating a professional review action, if the 
sanction lasts longer than thirty (30) days. 

(3) Professional review action sanctions against a physician which must 
be reported to the board of medicine pursuant to subsection (2) of this 
section, whether voluntary or involuntary, shall be: 

(a) Restriction or limitation of privileges; 

(b) Revocation of privileges; 

(c) Suspension of privileges; 

(d) Reduction of privileges; 

(e) Denial of a request for initial privileges; 

(f) Submission to monitoring of the physician's physical or mental condi- 
tion; 

(g) Submission to monitoring of the physician's delivery of medical 
services other than to assess and monitor the physician's qualifications for 
new or additional privileges; 

(h) Surrender of privileges; 

(i) Summary suspension or reduction of privileges lasting longer than 

thirty (30) days; 

(j) Termination of employment; 

(k) Suspension of employment lasting longer than thirty (30) days. 

(4) The reporting requirements of this section shall not apply to: 

(a) Actions based on compliance with medical records or confidentiality 
requirements of a health care organization; 

(b) Voluntary requests for assistance or monitoring by a physician as part 
of an educational process to improve physician skills or enhance patient 
care when unrelated to a professional review action concerning the 
quality or necessity of patient medical care; 

(c) Voluntary or involuntary revocation, nonrenewal, denial, reduction, 
restriction, resignation, or limitation of privileges or employment of a 
physician based upon factors not directly impacting the quality of patient 
care or safety of practice of the physician; 

(d) Adverse actions taken against a physician by a health care organiza- 
tion that is not required by law to conduct peer review and that has not 
voluntarily formally elected to conduct professional review actions; and 

(e) The denial of a physician's request for additional privileges or creden- 
tials with a health care organization. 

(5) The report to the board of medicine required by this section shall 
include a statement of the quality of care concerns or professional conduct 
that is the basis of the professional review action or investigation and the 
reportable professional review action sanction voluntarily accepted or 
involuntarily imposed. 

(6) A health care organization required to report a professional review 
action concerning a physician to the board of medicine pursuant to this 
section shall, if requested by the board of medicine, provide to the board the 
following: 



339 HOSPITAL LICENSES AND INSPECTION 39-1393 

(a) A statement of the specific quality of care concerns or professional 
conduct which resulted in the professional review action sanction; 

(b) A statement of the specific professional review action sanction; and 

(c) Any patient care records of the health care organization regarding the 
care provided by the reported physician. However, the board of medicine 
may not request or require production of any peer review records from any 
person or health care organization, including the identification of which 
particular patient care records were selected for, or reviewed, examined or 
discussed in any peer review activity of a health care organization, or the 
method used by the health care organization to select such patient care 
records for peer review. 

(7) The records lawfully requested by the board of medicine pursuant to 
subsection (6) of this section shall be provided by the health care organiza- 
tion without a subpoena or court order. If the health care organization fails 
to comply with the board of medicine's lawful request, the board may 
petition the district court for an order compelling compliance with the 
board's request, which shall be granted if disclosure is required by law. 

(8) Professional review action sanctions against emergency medical ser- 
vices personnel, whether voluntary or involuntary, which are the result of 
any action, conduct, or failure to act which is inconsistent with the 
professionalism and/or standards established in the rules governing emer- 
gency medical services personnel as promulgated by the department of 
health and welfare must be reported to the department of health and 
welfare. 

(9) The report to the department of health and welfare required by this 
section shall include a statement of the quality of care concerns or profes- 
sional conduct that is the basis of the professional review action or 
investigation and the reportable professional review action sanction volun- 
tarily accepted or involuntarily imposed. 

(10) Any person or health care organization that provides notification as 
required by law, or in a good faith belief that such notification is required by 
law, shall be immune from any civil or other liability arising from providing 
the notification. Such immunity shall likewise pertain to the provision of 
files, records and information a health care organization may in good faith 
provide to the board of medicine pursuant to this section or other applicable 
law. Such materials provided to the board of medicine shall be subject to 
disclosure by the board according to chapter 3, title 9, Idaho Code, and 
available only to the board of medicine and its staff unless and until such 
matter becomes the subject of formal proceedings by or before the board of 
medicine or authorized by it. 

History. 

I.C., § 39-1393, as added by 2003, ch. 244, 
§ 6, p. 628; am. 2004, ch. 134, § 4, p. 454. 

STATUTORY NOTES 

Cross References. State board of medicine, § 54-1805. 

Department of health and welfare, § 56- Prior Laws. 
1001 et seq. Former § 39-1393, which was comprised 



39-1394 HEALTH AND SAFETY 340 

1976, ch. 80, § 1, p. 257; am. 1986, ch. 100, 
§ 1, p. 280; am. 1990, ch. 213, § 42, p. 480, 
was repealed by S.L. 2003, ch. 244, § 5. 

39-1394. Patient care records — Retention — Authentication. — 

(1) Retention. 

(a) Hospital records relating to the care and treatment of a patient may 
be preserved in microfilm, other photographically reproduced form or 
electronic medium. Such reproduced and preserved copies shall be 
deemed originals for purposes of section 9-420, Idaho Code. 

(b) Clinical laboratory test records and reports may be destroyed five (5) 
years after the date of the test recorded or reported therein, pursuant to 
paragraph (d) of this subsection. 

(c) X-ray films may be destroyed five (5) years after the date of exposure, 
or five (5) years after the patient reaches the age of majority, whichever is 
later, pursuant to paragraph (d) of this subsection, if there are in the 
hospital record written findings of a physician who has read such x-ray 
films. 

(d) At any time after the retention periods specified in paragraphs (b) and 
(c) of this subsection, the hospital may, without thereby incurring liability, 
destroy such records, by burning, shredding or other effective method in 
keeping with the confidential nature of their contents, provided, however, 
that destruction of such records must be in the ordinary course of business 
and no record shall be destroyed on an individual basis. 

(e) For purposes of this section, the term "hospital" shall include all 
facilities defined as hospitals in chapter 13, title 39, Idaho Code. 

(2) Authentication. 

(a) Hospital records relating to orders for the care and treatment of a 
patient or for the administration of any drug or pharmaceutical must be 
authenticated to ensure accuracy and patient safety. 

(b) All orders must be authenticated by the author of the order. 

(c) When telephone or oral orders must be used, they must be: 

(i) Accepted only by personnel authorized to do so by medical staff 
policies and procedures, consistent with federal and state law; and 
(ii) Authenticated by the author of the order in a timely manner as 
stipulated by hospital policy. 

(d) Authentication may occur either manually, with the practitioner's 
signature, or electronically by facsimile transmission signed by the 
practitioner or by means of a unique electronic code known only to the 
practitioner. 

(e) Each hospital must have in place policies and mechanisms to assure 
timely authentication of all orders and to assure that only the author of an 
order can authenticate his or her own entry. 

History. 

I.C., § 39-1394, as added by 1977, ch. 102, 
§ 1, p. 217; am. 2001, ch. 67, § 1, p. 125. 

39-1395. Practice of podiatry — Medical staff membership. — 

Except as otherwise provided in this section, no provision or provisions of 



341 HOSPITAL LICENSES AND INSPECTION 39-1395 

this section shall in any way change or modify the authority or power of the 
governing body of any hospital to make such rules, standards or qualifica- 
tions for medical staff membership as they, in their discretion, may deem 
necessary or advisable, or to grant or refuse membership on a medical staff. 

An applicant for medical staff membership may not be denied member- 
ship solely on the ground that the applicant holds a license to practice 
podiatry issued by the Idaho state board of podiatry. The criteria utilized for 
granting medical staff membership shall be reasonable and shall not 
discriminate against podiatry. 

The process for considering applications for medical staff membership and 
privileges shall afford each applicant due process. 

All applications for medical staff membership shall be acted upon within 
one hundred twenty (120) days from the date the required information is 
submitted. 

The accordance and delineation of clinical privileges for podiatrists shall 
be determined on an individual basis and commensurate with the appli- 
cant's education, training, experience and demonstrated competence. In 
implementing these procedures, each hospital shall for